5-4 SCOTUS Strikes Down Mandatory Union Dues for Public Employees


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

Related Post Roulette

53 Responses

  1. Avatar Aaron David says:

    I have a hard time reconciling this “And at every stop are black-robed rulers overriding citizens’ choices.” with a union forcing someone to pay dues if they don’t support it, basically overriding citizen’s choices. I am not sure which part of the 1st says you are compelled to support something (union, political party, etc.) you disagree with.Report

    • Avatar pillsy says:

      A citizen always has the option to find another job.

      I don’t know that I think the majority is wrong here, but I also don’t think the idea that Janus was being subjected to some particularly intolerable form of coercion holds up very well.Report

      • Janus wants the benefits of a union job, but not to pay for them. Appropriately named for being two-faced.Report

        • Avatar pillsy says:

          The actual argument Janus ended up making is epic level bananas. “How dare they demand union dues when they advocate for more money and benefits than I want!”

          Like I said, doesn’t mean the majority is wrong, because the First Amendment definitely gives you the right to be a weird bozo. But what a weird bozo.Report

          • Avatar Pinky says:

            Sounds like a good citizen and employee.Report

          • Avatar Em Carpenter says:

            During West Virginia’s recent teacher strike, there were several teachers and school service personnel who disagreed with the Unions’ decision to strike. They felt that the state was too broke to be passing out the raises the Unions were demanding. That’s Janus’ perspective too, I think. If nothing else, good on him for not thinking only of himself, I guess?Report

        • I get the pun, but it’s not clear to me that Janus necessarily wants the benefits. I’m sure he enjoys them, but it’s possible not to welcome, for example, a pay raise if that raises the likelihood that there may be cutbacks, budget shortfalls, or layoffs in the intermediate term.Report

          • @mike-schilling

            To elaborate, I’m a beneficiary of my public employee union. I’ve benefited freakishly a lot from it. And because I benefit so much, I rejoined the union today in the wake of the decision because I feel a personal obligation to pay in light of the very tangible benefits I’m receiving.

            That said, I believe the union of which I am now a member is part of a set of processes that may very well bankrupt the institution for which I work. Or, if “bankrupt” is too dramatic, I fear these processes will make the services we provide increasingly out of reach for less affluent people. On a more personal level, I fear that increasing the cost of hiring me and my colleagues may lead to layoffs of people with less seniority, among which I must include myself. Therefore, I oppose the union even though I am now voluntarily contributing to it.

            I don’t know much about Janus or his rationale other than what I read in the decision. But it’s not completely absurd that someone can rationally and even self-interestedly take his position.

            For full disclosure, my sense is that a very large majority of my colleagues support the union and would disagree with me. They have always been nice about it and have never pressured me. They’re great people to work with and I’m privileged to have the opportunity. So that’s a counterpoint to some horror stories other people have about unions.Report

            • It’s possible that someone is principled to the point of giving up pay raises, but it’s not the way to bet.Report

              • Avatar PD Shaw says:

                He is in the WaPo today, saying: “I would gladly forgo my annual raise because it’s more important to me that the state get its financial house in order.” Link

                That might be a principled position, but a few caveats. (1) The annual raise is a COLA; he’s almost certainly topped-out on salary increases, even if he took a promotion. (2) A lot of employee benefits are actually written into legislation, and not the result of collective bargaining, though union lobbyists certainly lobbied for the legislation. (3) A lot of state workers have been hurt by the state’s financial problems; its meant fewer employees doing more work, with glitchy computers, no funding for necessary software and contractors hired to do things like take away the garbage not picking-up the garbage because the state hasn’t paid the bill for months.Report

              • Maybe? Janus is a child care specialist. I don’t know what that means or what his exact job is, but depending on those things I don’t know, perhaps he sincerely believes children are harmed by his union’s policies. Or maybe he’s one of those guys who bloviates a lot at work but doesn’t really contribute anything.

                He’s been in the public spotlight for about a year. Maybe he’s a glory hound and loves the attention, but a lot of people would find that kind of thing very challenging. I’m a “dissenter” from my union and for the most part keep my reservations to myself. The one time I openly dissented was a show-of-hands vote on a strike. I was one of a handful who voted against it. (This was when I was in the union before I had left it. Now, I have rejoined it. I believed a strike would hurt the people we were hired to serve, all of whom had already paid for the service we were going to withhold….and there were no plans to give them their money back.) Of course, no one “retaliated” or made me feel unwelcome, but it’s hard to be one of the few people in a very large room who’s going against the grain.

                But on your main point, I guess I have to agree. If I had to bet money, I’d probably be richer assuming people are simply trying to pocket the $500 per year or so and enjoy the benefits at the same time. To a financially strapped person, that plus a raise equals “free ridership.”Report

              • I’ll also reiterate what I wrote in my comment: While I can’t speak for Mr. Janus, there are self-interested material reasons why someone could be opposed to the union, beyond the agency fee issue.

                1. As I’ve said, it’s possible the union could make things so precarious that one’s own future employment can be at stake. So yes, it’s nice to have a large salary, but not if that means a possible layoff in the medium or even short term. (And this point isn’t only about self-interest. The more senior people I know in my work site would hate to see someone else laid off.)

                2. Someone I spoke with who is in a different job category from me but is also in the union has noted that he or she hasn’t gotten much of a salary increase at all. In another case I’m aware of, some more senior people had to forgo expected and promised raises to elevate the salary of some lower-paid workers.

                Now, reason #1 is probably not on a lot of people’s horizons, especially the more seniority they have. And reason #2 might very well be more specific to my workplace and not generalizable. But they’re self-interested.Report

      • Avatar Aaron David says:

        It’s the federal government, an ostensibly neutral organization. There is absolutely no, and I mean zero, reason we as a country should allow compelled speech of its employees. Which is what this boils down to.Report

        • Avatar Em Carpenter says:

          As a lawyer for a government agency, should I not be compelled to to speak on my employer’s behalf? That would make my job obsolete.

          If I work for the DMV and I disagree with the rule that drivers must show 5 forms of ID to renew their license, should I not be compelled nonetheless to tell the customer at my service window that they need five forms of ID?

          I think that is an unworkable standard.Report

          • Avatar Aaron David says:

            Doing one’s job is quite different than forced political speech.Report

            • Avatar Em Carpenter says:

              You didn’t say “political speech”, though. You said no compelled speech without equivocation.
              The thing with Janus is that he was (allegedly) only being forced to pay a percentage of the dues- that which was attributable to collective bargaining costs and non-political activities.
              The majority makes the argument that collective bargaining by public employees is by its nature political because it involves expenditures of tax dollars.Report

              • Avatar Aaron David says:

                I assumed (I know, I know) that, due to the nature of what we are talking about, the political aspect was a given. Why? Because that is what this whole thing boils down to. He wasn’t asking that he need not do parts of his job, nor complaining about having to put his whole check into the union’s kitty.

                You state what Janus’s complaint was (the states fiscal condition vs. union activities), which is inherently political. The amount of dues matters not, as even if they were solely putting his name down on a list of being supportive when he is not they are still taking something that he is not freely giving for political advantage.

                While speech in service of a job is indeed compelled speech, it is not political speech that one need not perform to complete one’s job. In other words, no part of the DMV’s mission requires one to say “all hail Ceaser.”Report

        • Avatar pillsy says:

          State law, actually, but that’s not really the issue.

          I’m just not clear this rises to the level of compelled speech.

          Say instead that the State of Illinois agreed to separately pay the union $535/employee, without listing it as dues taken out of the paycheck. Is that compelled speech? It doesn’t seem like it to me. But the difference seems to be one that’s an accounting trick.

          And of course we should allow the government (state, federal, or otherwise) to compel some sorts of speech from its employees. They’re employees!Report

      • Avatar Oscar Gordon says:

        A citizen always has the option to find another job.

        The exact same argument can be used when discussing employers who pay little and treat employees like crap. When employed, however, Union supporters insist the Union is necessary because employment options are somehow severely limited and thus we can not rely on employees being able to vote with their feet.Report

        • Avatar pillsy says:

          That’s true, but I don’t think it’s actually inconsistent.

          You don’t have a right to any particular job[1] That gives employers a lot of power: unions let you take some of it back, but at a cost of being in, and having a union. The union is contracting with the employer, not you, so the contract is going to protect the union’s interests as well as yours.[2]

          Now when we have a government employer maybe that is too coercive, just like the First Amendment means that the government can’t fire employees for speech a private employer could totally can you for.

          [1] Even the Leftward folks who are pushing for a federal jobs guarantee are just guaranteeing a job.

          [2] Sometimes a union is sufficiently crap that it won’t because the Iron Law of Institutions is a wonderful thing, and some people have very odd ideas about their interests. But still.Report

          • Avatar Oscar Gordon says:

            The union is contracting with the employer

            I think this is only technically true for a closed shop type arrangement.

            That aside, it’s still a very weak argument to make, because you have to work to show a consistency (I understand your argument, but only because I’ve had an awful lot of such discussions and grok the power dynamics at play pretty well; for a person whose never real thought about it, or who rejects your claim regarding the power dynamic, it falls apart).

            Changing the subject a bit, personally I’d love to see more such decisions because I’d really like to see the landscape of labor law change in the US (and my hope is this will encourage it to change for the better). The crap we have on the books is far too friendly to corporations and encourages unions to engage in damaging behavior. We didn’t get to this place because the GOP ran a great anti-union campaign, the big unions were quite competent to shoot themselves in the knees over and over again, and the GOP was just happy to come in and kick them while they were bleeding on the ground.Report

            • Avatar pillsy says:

              I mean yeah you have to work to show consistency, but you often do. Sadly not every correct argument is self-evidently obvious.

              As for labor law it’s definitely kind of a mess, but in this case Janus went through the courts, so it’s also not clear it’s a matter of popularity or overreach or anything else. Janus’ argument really stands or falls independently of the legitimacy of his complaints about his particular union.

              I also don’t think this is anything like a death knell for public employee unions that a lot of other folks on the Left seem to think it is, which is another reason I think the majority may be on the right side of this one.

              (It may seem like I’m arguing both sides here; it’s because I’m on the fence myself.)Report

              • Avatar Oscar Gordon says:

                Nothing wrong with being on the fence. It’s a fine place to sit, and it’s only uncomfortable because you are actually thinking about things.Report

        • The exact same argument can be used when discussing employers who pay little and treat employees like crap.

          Which should also be unconstitutional?Report

          • Avatar Burt Likko says:

            No need to escalate this to the Constitution. Statutory law is quite sufficient to regulate this sort of thing to tolerable minimums.

            Which of course also requires those sinister and untrustworthy black-robed “rulers” to do the things that a presumably elected-by-a-majority-of-voters legislature instructed and empowered them to do.Report

            • Avatar pillsy says:

              Yes, but it also requires the black-robed rulers to effectively signal that they’re motivated by principled legal concerns, instead of partisanship.

              And this particular bunch of rulers has been doing a phenomenally crap job of that, which undermines their ability to be trusted when they hand down decisions like this one, which actually doesn’t seem terrible.Report

  2. Avatar pillsy says:

    I’m not sure that (given this is a state employe’s union) the majority is wrong about the free speech angle, but the idea that one might be required to do things one would prefer not to do as a condition of one’s employment is… pretty much the definition of employment.Report

    • Avatar Oscar Gordon says:

      Thing is, when a corporation lobbies the government or gets otherwise political, no one imagines the rank and file have a say regarding those decisions. Everyone knows their opinions don’t matter and it’s the corporate leadership making those choices, and spending money from corporate profits.

      But a union is less a corporation and more a co-op. When the Union conducts a political action, the membership, ostensibly, is actively participating in those decisions. Or at the very least, it is acting with the blessing of the majority of the membership. Hence, the perception is different. It’s more like how you feel about the fact that Trump gets to act in your name. His dumpster fires reflect in a small way on you. ETA: And the funds being used come directly from employees, rather than from corporate profits.

      So I can appreciate how people can feel very differently about the political choices of their Union versus their Employer, and further appreciate that they object to being forced to continue to support the Union when they feel that it is no longer representing their interests (in much the same way that they would object to being forced to support, say, the ACLU, should it no longer represent their interests.Report

      • Everyone knows their opinions don’t matter and it’s the corporate leadership making those choices, and spending money from corporate profits.

        It’s interesting that you say “corporate leadership” rather than “shareholders”. I guess nobody believes that shareholders have any say in corporate behavior anymore.Report

        • Avatar Oscar Gordon says:

          Honestly, when was the last time you saw a shareholder revolt that was not directly related to the value of the shares or the dividends being paid out?Report

          • That’s always been my argument against Citizens United: it’s corporate management using the shareholders money to, well, compel speech. If the majority of shareholders vote to allow that, fine. (Which would have been fine for Citizens United itself, since political activity is why it exists.) . And I’ve usually been told that shareholders can deal with it if they want to, and if I don’t know the name of every company my retirement funds own, that’s on me.Report

            • Avatar Oscar Gordon says:

              Given the vast bulk of shareholder actions against corporations is due to share value or dividend payments, shareholders do take action, and would, if they felt that the corporation was spending too much on political activity as opposed to keeping value or dividends high.

              In short, corporate spending on political activity is not sufficiently high enough to cause a enough shareholders to take action beyond possibly selling the shares.

              Perhaps if our elected officials were not so cheaply bought, shareholders would care.Report

      • Avatar pillsy says:

        True, but it’s also actually the employer that’s ultimately made the choice to have the union dues come out of the employee’s paycheck.

        I’m pretty sure I’m technically correct on this one, but it is the very best kind of correct. Not emotionally satisfying perhaps, but my brief stint as a union employee didn’t actually leave me overwhelmed with the union I was part of. They… were OK I guess.

        As for the rest, I agree with @mike-schilling . The most useful analogy is shareholders and corporate management.Report

        • Avatar Oscar Gordon says:

          Yeah, SPEEA wasn’t anything to write home about either.

          My one quibble with the shareholders/union members comparison is that a union local will have hundreds, maybe thousands, of members (national orgs obviously have more, but most of the work is done by the local for the local). Corporations typically have thousands to millions of shareholders, and often enough, the bulk of the shareholders hold the shares in funds, or those who hold a bulk of shares (enough that it’s worth voting those shares) are people who are just fine with the corporation doing what it does.

          I.E. the incentives and information at play between the two are vastly different.Report

  3. Avatar PD Shaw says:

    I’ve not read the opinion, but since it arose from Illinois, I think I can give some sense of public opinion based upon a frequently discussed story about two union lobbyists who got million dollar teacher pensions from working a single day as a substitute teacher. LINK Basically, they were allowed to count their years and pay working for the union as if they had been working as teachers based upon a law that opened a narrow path if the two took certain steps before the bill was signed by the governor into law, i.e., it was a payoff meant only for those two.

    The story goes on, but basically a recurrent phrase is about one-million-dollar-pensions-for-one-day’s-work. It’s not that actual workers are getting that kind of payout; it’s shorthand for corrupt, self-serving public unions.Report

  4. Avatar Marchmaine says:

    Will linked to a piece last week about the Las Vegas Union that is succeeding without mandatory dues.

    There are several vectors of perverse incentives and freeloading that run across the whole matter of collective bargaining; I’m in favor of more labor solidarity in principle, but I’m not sure the late-19th early-20th century model of Unions can’t be updated and improved.Report

  5. Avatar Slade the Leveller says:

    Like @pd-shaw I am a resident of IL. Let me state for the record that I am all in favor of unions. However, public employee unions are a different kind of animal. When they go to the bargaining table there is no one on the other side with a vested interest in keeping costs down. Too often, at least in Illiinois, excessive contracts are given to buy “labor peace”, usually in advance of some large event, e.g. Chicago’s failed bid to host the Olympics (thank God it failed!), or the start of the school year. The overly generous pension costs written into these contracts will eventually bankrupt the state of IL.

    It’ll be interesting to see what kind of strategies public sector unions come up with to deal with free riders.Report

    • Avatar Chip Daniels says:

      However, private sector contractors are a similar kind of animal. When they go to the bargaining table there is no one on the other side with a vested interest in keeping costs down.
      Too often, excessive contracts are given to cronies and well connected firms.

      I think the flaw here isn’t systemic; If the elected officials don’t have some political force to make them accountable for cost control, it doesn’t really matter whether they are sitting across the bargaining table from a union or a corporation.Report

      • Avatar Oscar Gordon says:

        I think the flaw here isn’t systemic; If the elected officials don’t have some political force to make them accountable for cost control, it doesn’t really matter whether they are sitting across the bargaining table from a union or a corporation.


        • Avatar Oscar Gordon says:

          It always amazes me how incensed people get about wasteful union contracts, but give a big ‘meh’ on clearly inflated service or infrastructure spending.

          I think about how in WA, people were super pissed that teachers were threatening to strike a few years ago, but no one seemed to care that the state was paying out millions in cost over runs for the water front tunnel or the 520 floating bridge replacement, especially given the reasons for the over-runs was contractor screw-ups (who had contracts indemnifying them from the full cost of unforeseen issues, IIRC).Report

  6. Avatar Kolohe says:

    “Lets make Public Sector Unions Super Duper Strong”

    “Let’s abolish ICE”

    yep, that’s gonna work out well.Report

  7. Avatar Em Carpenter says:

    While speech in service of a job is indeed compelled speech, it is not political speech that one need not perform to complete one’s job. In other words, no part of the DMV’s mission requires one to say “all hail Ceaser.”

    Ok, but I’m going to tell you that as a lawyer for a government agency, quite a lot of my work-related compelled speech is political. Maybe we can agree that there’s a line between forced support in a personal capacity vs in the course of job duties.Report

    • Avatar Murali says:

      Maybe we can agree that there’s a line between forced support in a personal capacity vs in the course of job duties.

      This seems so obviously correct that I wonder why it took us 28 comments to get here.Report

  8. Avatar PD Shaw says:

    I guess this provides some sense of what will happen:

    A survey by the AFSCME — the union Janus would have to pay into — found that if agency fees were no longer mandatory, 15 percent of employees would stop paying them, while 35 percent would continue to pay. The balance of workers were “on the fence.”

    I suspect that the Governor’s union-busting efforts have made public sector employees feel insecure and it may be that workers “on the fence” are waiting until the Governor gets voted out of office in November. Wouldn’t that be ironic?Report

  9. My knee jerks toward abolish compulsory fair share for public-sector unions, but having read the opinion and the dissent, I’m inclined to say that Kagan has the better argument. I don’t think I’m on board, but I’m less convinced than I was before I read her dissent. Also, she’s a pretty good writer.

    ETA: as usual, a good summary. Thanks for doing these.Report

    • Avatar Em Carpenter says:

      Thanks! I struggle with worrying I include too much detail or not enough, trying to synthesize the salient points in an way that’s accessible to non-legal oriented minds. I’m glad you enjoy them.
      I’m also glad the term is over.Report

  10. Avatar DavidTC says:

    As I always say: The most surreal thing in American politics is the absurd belief that union law exists to help workers. Uh, no. It exists to _constrain unions_.

    Agency fees are a law, and they were made a law for a reason, and that reason is, as always in labor law, to keep unions from doing things.

    So I’m laughing at this opinion. They, uh, missed something pretty big: It is entirely legal for unions to say ‘You will pay us more than this specific group of non-union workers’. It happens all the time.

    So, I want to imagine a hypothetical. This union turns around, and puts, in their next collective bargaining agreement, that the State of Illinois will pay union workers of any class $1000 more than non-union workers of the same class.

    Now, before, unions couldn’t do this specific thing, because the law _did not allow non-union workers_, or at least not an option between union and non-union.

    In right-to-work states, unions have to accept agency fees, and they had to represent everyone they were getting agency fee from. All those people were, in theory, ‘in the union’, and had to be negotiated for together. And threatening people they have been paid to represent with said agency fees with lower wages if they didn’t ‘voluntarily’ pay full union dues obviously would not be allowed.

    Now…they don’t represent that person, at all. The courts just said it. So they can clearly demand their workers get paid more than _him_. (Or, rather, the class of workers he belongs to, which is just him at the moment.)

    But it shouldn’t remain just him. The union can and should drop the option of allowing ‘agency fee’ at all…you either pay full dues, or you’re out of the union. The law says they’re supposed to have agency fees, but clearly if the courts ay *one side* can say ‘I shouldn’t have to be forced to pay for this entity to speak for me.’, the *other side* can say ‘I shouldn’t be forced to accept money to speak for this person’.

    I’d like to see what sort of logic conservative courts will twist themselves into trying to justify why that shouldn’t be true.Report

    • Avatar DavidTC says:

      Hey, sorry, I spoke too late:

      That lawsuit has literally already been filed:


      Number 10 of legal background
      If, however, Janus determines that it violates the First Amendment right of a nonmember to be compelled to pay fees to the union that is required by law to provide representation and services, it equally violates the rights of the union and its members to require them to use their money to speak on behalf of the non-member. Hence, the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. Similarly, freedom of association plainly presupposes a freedom not to associate.

      Unions are going to be trying to kick ‘agency fee’ members out left and right, removing any duty to negotiate for them. Gee, I wonder why they’d be doing that? Perhaps to…negoiate against them.

      Daaaaaaamn, a lot of ‘conservative legal geniuses’ are astonishingly stupid. Applying first amendment rights to collective bargaining is literally a new era in labor rights.Report

    • This union turns around, and puts, in their next collective bargaining agreement, that the State of Illinois will pay union workers of any class $1000 more than non-union workers of the same class.

      Which gives the state a rational basis for refusing to hire union workers.Report

      • Avatar Morat20 says:

        Good luck. Take the biggest ones: Police and firefighters. Do you think they’re chock full of non-union members, angry at the tiny union minority?

        By and large, it’s quite the opposite — to get rid of union members, requires firing most of your workforce. Which hey, maybe you can do if it’s really unskilled labor (although unions have long had methods of making that a poor choice), but good luck replacing that many employees that require certifications and the like.

        They might be able to make it stick with teacher’s unions, especially in states like Texas with very, very weak teacher’s unions. But….judging by how teachers have been lately, I wouldn’t bet on it.Report

      • Avatar DavidTC says:

        Which gives the state a rational basis for refusing to hire union workers.

        Why do you think they need a rational bias? It’s perfectly ‘legal’ to choose not to hire union workers. Union membership isn’t any sort of protected class, it’s perfectly legal to refuse to hire people who are currently in unions at some other place of employment. (Granted, such a behavior is almost nonsensical for a place with a mandatory union, like if the state government refused to hire teachers who were currently in a union it wouldn’t have any employees.)

        Or are you saying the state government might make new employees agree to not join the union? Ha! Good luck with that. Not only is that still illegal to bar, but joining a collective bargaining unit is now, thanks to this ruling, a constitutionally protected right.

        Like I said, this is perhaps the most hilariously stupid and counter-protective legal gambit I’ve ever seen anyone do. Unions used to be incredibly restricted organizations. More restricted than non-profits, more restricted than companies. This was on the grounds they had one specific things, collective bargaining, and were not supposed to be political in any manner.

        And then those idiots just had the court rule that collective bargaining was a) subject to first amendment right, because it was b) an inherently political act, and the entire house of cards comes tumbling down.

        It’s subject to first amendment rights, eh? Good luck with those laws forbidding strikes by public sector employees…that looks a lot like both interfering with teacher’s freedom of assembly _and_ restricting the speech of the union in telling employees to strikes.

        That is, literally, an example I came up with while _typing_ this comment. There’s tons of others.Report

  11. Avatar Iron Tum says:

    1. Legislature draws funds from tax cattle citizens
    2. Legislature uses funds to pay government workers
    3. Government unions extract funds from government workers
    4. Government unions use funds to support legislators.

    If you would just let the leg spend tax monies directly on their own campaigns, there wouldn’t be all this controversy.Report