Janus v. AFSCME symposium (2)

[This is a re-run of an earlier post, with four additional articles (the first four). Enjoy.]

Our friends at SCOTUSblog have been running a symposium on Janus v. AFSCME [Briefs] – the case in which I have a hunch the US Supreme Court will declare public sector unions' "fair share" or "agency shop" agreements to be in violation of the 1st amendment. (The Court will hear oral arguments on February 26.)

Here are the links to several articles, with a brief quote from each:

Agency fees benefit the workplace — just ask the states - Xavier Becerra Aimee Feinberg. "States impose agency-fee requirements in their capacity as government-employers, and those requirements apply to individuals only in their capacity as public employees. Agency fees are part of a management strategy to help public employers efficiently and effectively run their operations. Applying exacting or strict scrutiny in this context would be strikingly anomalous, given the longstanding and undisputed rule that the government has greater leeway when setting rules for public employment."

Evidence shows unions will survive without agency fees - Patrick Wright. "Using the federal government’s CPS data, we determined that in agency-fee states, the union membership rate is over 90 percent, while in right-to-work states that rate is around 80 percent. These percentages applied in both the private and public sector."

The free speech right of public employees not to pay union dues - Terry Pell. "Ultimately what unions may fear is not that the loss of agency fees will make it harder to represent their members’ interests, but instead that doing so will spur debate among public employees about whether the union is adequately and accurately representing the real interests that public employees themselves believe they have."

Not just a workers’ rights case - Emily Martin. "Janus is not just a workers’ rights case, but a case that will decide issues critical to workplace equality for women and people of color." "Public-sector unions are important engines of equality and economic opportunity for women in particular. The bargaining power, pay standardization and transparency, and antidiscrimination protections that unions provide help correct for the factors that tend to depress women’s pay."

The importance of respecting precedent - Michael Kimberly. "I doubt that Abood would have been decided the same way if it had been litigated more recently. But as the court has said time and again, mere disagreement with precedent is no basis for overruling it."

Hijacked riders, not free riders - Andree Blumstein. "The nonmembers are not free riders; they are hijacked riders. Mandatory agency fees compel nonmembers’ union association.  Mandatory agency fees also compel those who pay them to support particular speech. The nonmembers are forced to support a government-sanctioned advocacy organization to lobby the government and to influence public policies on behalf of a special-interest group from which they have purposefully disassociated themselves."

A ruling for plaintiffs would revive Lochner - Catherine Fisk. "The Lochner-era invalidation of labor laws has been deplored for 80 years as judicial activism, politicians in robes substituting their deregulatory views of labor policy for those of the elected representatives. The court cannot rule for the plaintiffs in Janus without reviving under the First Amendment the very judicial activism that it wisely discarded in 1937."

Overrule Abood to protect individual rights (at long last) - Deborah La Fetra. "The Supreme Court may now overrule Abood entirely and repudiate public-employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits. These garnished wages come from the paychecks of government employees — paid from taxpayer dollars — to subsidize efforts to expand union power and increase government spending still further: an endless cycle of government funding the demand for its own growth, all at the expense of citizens and dissenting workers who are forced to bankroll the enterprise."

For the third time, justices take on union-fee issue: In Plain English - Amy Howe. "The justices are sometimes skeptical of changes in position, but this may be a case in which a switch may not make much of a difference. If (as seems very possible) eight justices have already made up their minds, all that really matters may be what Gorsuch thinks."