AFSCME's brief in Janus v. AFSCME

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Public sector labor unions are trembling at the thought of losing a significant source of funds – the "fair share" fees that non-members must pay to the unions in order to keep their jobs. Unions represent 35 percent of the government workforce, so we're looking at huge amounts of money that objectors say is being taken from employee paychecks in violation of the 1st amendment.

Janus v. AFSCME [Briefs] could upend decades of 1st amendment understanding by overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977) [Text], which upheld the constitutionality of fair share fees. Oral argument is scheduled for February 26 at the US Supreme Court, with a decision expected in the Spring.

 Roman god Janus, who marks all beginnings and transitions

Roman god Janus, who marks all beginnings and transitions

It seems fitting that the ancient Roman god Janus had the basic function of marking all beginnings and transitions. Janus was depicted as a god with two heads – one facing the past and one facing the future.

Everyone I know expects the Court to overrule Abood. The Court split 4-4 on this issue in Friedrichs v. California Teachers Association [PDF] in 2016. Adding Justice Gorsuch to the Court appears to provide the necessary fifth vote to overrule Abood.

The probable rationale for overruling Abood was clearly laid out in Harris v. Quinn (US Supreme Court 2014) [PDF]. You can read my summary of the Court's criticism of Abood here: Harris v. Quinn: An anti-Abood manifesto.

AFSCME filed its brief [PDF] on January 12. Here are the essential points:

1. Courts below lacked jurisdiction due to the way plaintiff entered the case.

2. Overruling Abood, and applying exacting scrutiny, is inconsistent with the original meaning of the 1st amendment.

3. The Court has never applied strict scrutiny when the government acts as employer. Fair share fees implicate employee speech, not citizen speech.

4. Abood provides a fair balance between speech rights and the government's interests as an employer. The government has legitimate interests in preventing free-riders and in having a well-funded exclusive representative for its employees.

5. There is a sound distinction between political lobbying and collective bargaining.

6. Overruling Abood would be inconsistent with stare decicis.

If you want to see what Janus's brief [PDF] is saying, read Janus files SCOTUS brief.

[For a list of current employment law cases, see Supreme Court Watch.]