Janus v. AFSCME: The government's brief

Janus v. AFSCME: The amicus brief for the United States came in on December 6, and – not surprisingly – it's in support of Janus. Elections matter. When Friedrichs v. California Teachers Association was pending at the US Supreme Court last year, the government weighed in in support of the union. So, with different folks running things, we get different results.

Here's the outline of the government's brief:

The Court should overrule Abood and hold that the First Amendment prohibits compulsory agency fees in public employment

A. Compulsory agency fees in public employment do not withstand First Amendment scrutiny:

1. Exacting scrutiny applies to the compelled subsidization of speech on issues of public policy

2. Public-sector collective bargaining necessarily involves issues of public policy

3. Compulsory agency fees in public employment therefore require exacting scrutiny

4. Compulsory agency fees in public employment do not withstand the appropriate level of scrutiny

B. Compulsory agency fees in public employment do not withstand Pickering balancing

1. Pickering balancing does not apply to petitioner’s First Amendment challenge

2. Even if Pickering balancing applies, compulsory agency fees in public employment are unconstitutional

C. Stare decisis does not require reaffirming Abood

If you want to read the rest of the briefs on file in this case, check out SCOTUSblog.

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