SCOTUS: Public sector union agency fees violate the 1st amendment (5-4)

Janus v. AFSCME (US Supreme Ct 06/27/2018)

The US Supreme Court has ruled (5-4) that it is a violation of the 1st amendment for a state to require nonconsenting public sector employees to pay agency fees to a union, overruling Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). "We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." The Court characterized agency fees as compelled subsidy of the speech of other private speakers, and emphasized the inherently political nature of public-sector bargaining. The Court applied "exacting scrutiny" (less than strict; more than rational basis) to the issue and concluded that agency fees do not "serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms."

Thus, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

The Court found that agency fees cannot be upheld on the ground that they promote an interest in labor peace because labor peace can readily be achieved through less restrictive means. As for the argument that agency fees are needed to eliminate free riders, the Court said that in non-agency-fee jurisdictions, unions are quite willing to represent nonmembers in the absence of agency fees, and any event States can avoid free riders through less restrictive means.

The Court said that Abood is not supported by the 1st amendment's original meaning. Also, Abood was never based on Pickering v. Board of Ed., 391 U. S. 563 (1968), and even under some form of Pickering, agency-fee arrangements would not survive. 

Stare decisis was not enough to save Abood. The Court said Abood was poorly reasoned, applied a deferential analytical standard, did not take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, did not anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, did not foresee practical problems faced by nonmembers wishing to challenge those decisions, and did not understand the inherently political nature of public-sector bargaining. 

DISSENT: The dissent views Abood as striking "a stable balance between public employees' First Amendment rights and government entities' interests in running their workforces as they thought proper," and says "the majority subverts all known principles of stare decisis."