Supreme Court Strikes A Blow Against Public Sector Unions

In a 5-4 decision, the Supreme Court has ruled that public sector unions cannot force employees to pay membership fees.

In a much-anticipated decision, the Supreme Court has struck down a forty-year-old precedent, ruling that mandatory membership fees for public employee unions are unconstitutional:

Conservatives on the Supreme Court said Wednesday that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union, a major blow for the U.S. labor movement.

The court in a 5-to-4 decision overturned a 40-year-old precedent and said that compelling such fees was a violation of workers’ free speech rights. The rule could force the workers to give financial support to public policy positions they oppose, the court said.

“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” Justice Samuel A. Alito Jr. wrote for the majority. “This procedure violates the First Amendment and cannot continue.”

He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch.

Justice Elena Kagan wrote for the dissenting liberals:

“There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”

It was a devastating, if not unexpected, loss for public employee unions, the most vital component of organized labor and a major player in Democratic Party politics. It capped a years-long effort by conservative legal activists to forbid states from authorizing the fees.


Alito was unmoved by claims that the decision would be a crippling blow to the unions’ finances.

“It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment,” Alito wrote. “Those unconstitutional exactions cannot be allowed to continue indefinitely.”

Kagan delivered part of her dissent from the bench, a fairly rare move for her. She and Alito sit next to each other on the bench, and she began just after he finished his summary of the decision

Kagan broadly criticized the majority, which she said had overstepped its role by intervening in a political debate and “weaponizing” the First Amendment.

And “not for the first time,” she added, referring to the court’s 5-4 decision the previous day striking down a California law that required antiabortion pregnancy crisis centers to tell patients about the availability of state-offered services, including abortion.

“The majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices,” she said. “The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”

The mention of “black-robed rulers” was borrowed from Scalia.

This ruling ends what has been something of a long quest by conservative Judges and legal scholars to move against a precedent established by the 1977 case Abood v. Detroit Board of Education. In that case, the Court essentially legalized the “closed shop” for public sector employees, meaning that an employee for a local, state, or Federal agency or department could be required to join a union and pay dues as a condition of employment. For years, critics of forced unionization sought to overturn Abood, but it has only been with the rise of the current largely conservative Supreme Court that they have been successful in their efforts. With this decision, they have succeeded in those efforts, and it seems likely that this case will have repercussions at the State and Federal levels for unionized employees and for the politically powerful unions that represent them such as AFSCME and the SEIU.

While there were several minor cases along the way, the legal moves really began with the Court’s 2014 decision in a case out of Illinois. In that case,  Harris v. Quinn, the court dealt with an Illinois law that required mandatory unionization of home healthcare workers who participated in the state’s Medicaid system. In it’s ruling four years ago, the Court invalidated the rule but did not go as far as many observers thought they would and attack the precedent established by Abood itself. The next challenge came about a year later in a case titled Friedrichs v. California Teacher’s Association, which the Court accepted for review at the end of its October 2014 Term. When the Court heard the case in January 2016, it appeared that there was at least a 5-4 majority ready to essentially overturn Abood and rule the collection of mandatory union dues unconstitutional. Within a month after that decision, though, Justice Antonin Scalia died and the Court was left with a split that ended in a 4-4 ruling that allowed the Ninth Circuit Court of Appeals decision upholding the fees to stand but left both sides of the debate somewhat disappointed at the lack of a final resolution of the matter. Once the Court was back to a full complement of nine Justices and the conservative wing was back to full strength, it was readily apparent that any future case dealing with the issues raised by Abood would most likely lead to it being overruled, striking a blow against public sector unions most likely significantly weakening their political power and influence. That moment came last September when the Justices agreed to hear this case.

Amy Howe summarizes the opinion at SCOTUSBlog:

This morning the Supreme Court announced that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees. The 5-4 decision overturned an earlier ruling, dating back to 1977, that allowed the unions to charge such fees, which are often known as “fair share” or “agency” fees. Opponents of the fees hailed today’s ruling as a major victory for the First Amendment, while Justice Elena Kagan, who wrote the main dissent in the case, warned that the ruling could disrupt “thousands of ongoing contracts involving millions of employees.”


In an opinion by Justice Samuel Alito, the court concluded today that the fees violate the First Amendment. No one would doubt, Alito wrote, that the First Amendment bars a state from requiring its residents to “sign a document expressing support for a particular set of positions on controversial public issues.” Requiring someone to pay for speech by someone else also raises First Amendment concerns, Alito noted. And whether the constitutionality of agency fees is reviewed using the most stringent test (known as “strict scrutiny”) or a more permissive test, Alito concluded, the union fees are unconstitutional.

In Abood v. Detroit Board of Education, the 1977 decision upholding agency fees, Alito explained, the Supreme Court pointed to the state’s interest in “labor peace” and in avoiding the problem of “free riders” – people who reap the benefits of union representation without paying for them. But any worries about “conflict and disruption” in the absence of union fees have been proven wrong in the 41 years since Abood, Alito suggested. Nor is the possibility of a “free rider” problem enough to justify the fees, Alito continued: “Many private groups speak out with the objective of obtaining government action that will have the effect of benefitting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?” He concluded: “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”

Having concluded that the fees violate the First Amendment, Alito turned to the next question: Whether the court should overrule the Abood decision, given the general presumption against overruling older decisions “unless there are strong grounds for doing so” – a legal doctrine known as stare decisis. The majority answered this question in the affirmative.

Alito pointed to several factors that led the majority to conclude that Abood should indeed be overruled. First, he asserted, the Abood decision was “poorly reasoned, because, among other things, it relied on cases involving a “very different First Amendment question” than the one before it. Second, the ruling has proven “unworkable,” because (as even the unions themselves conceded in this case) it is so hard to distinguish between the expenses that nonmembers can be required to shoulder and those that they cannot. Third, the court decided Abood in a very different legal and economic environment; since the ruling 41 years ago, public spending – including the “mounting costs of public-employee wages, benefits, and pensions” – has skyrocketed, giving collective bargaining a political significance that it might not have had at the time of the Abood ruling. And the prospect that the unions and public employers may have relied on the constitutionality of the agency fees (for example, in negotiating the collective bargaining agreements now in effect), in Alito’s view, is not a reason to keep Abood. Those contracts will only last a few more years anyway, Alito stressed, and in any event the unions and public employers have known for several years that the Abood ruling could be in jeopardy.

As I noted in both my preview post on this case and in my post in the wake of the oral argument in the Friedrichs case, regardless of how one feels about the merits of unions in general, the First Amendment issues raised by laws such as the one at issue in these types of cases are fairly and seem to call for only one conclusion. In both cases, the Plaintiffs are regular union members who simply happen to disagree with the idea that at least some portion of the dues they are compelled by law to pay in order to work are being used to advance causes and candidates that they disagree with. This is a called compelled speech, and it is a clear violation of the First Amendment due to the fact that the government is making membership in the union a mandatory condition of employment. Were this a private-sector job with a company that happened to have a closed-shop agreement with a union, there would be no First Amendment argument since employers are generally free to enter into such agreement and, within certain guidelines, set standards for employment including the requirement that an employee be a union member. As I’ve said before, it’s fairly well-settled law, that people cannot be forced to subsidize speech they disagree with, and as the court’s conservative Justices noted in their questioning, the argument that there can be a distinction between public advocacy and contract negotiation in a public employee context simply doesn’t make any sense. Given this, a public employee who is compelled to pay union dues as a condition of employment is being compelled to subsidize speech whether they want to or not. This would seem to be a clear violation of the First Amendment.

Public employee unions have long been dreading the outcome of this case, and it’s easy to see why. With this ruling, millions of government employees at the Federal, state, and local level will now be free to opt-out of the payment of union dues that had heretofore been mandatory. No doubt many of them will make the decision to do so purely out of economic reasons since it will mean more money in their pocket at very little cost to them since they will continue to benefit from the union’s collective bargaining activities. Doing so, however, will also deprive unions of a significant source of income, which will in turn likely result in a reduction in their political power and influence on politics at all levels. To be sure, this won’t mean that government workers will not be required to pay any fees to a union that they benefit from, but it will reduce the amount that they will have to pay, and will have a real impact on the ability of these unions to influence political outcomes in ways that benefit them:

The court’s decision will weaken but not destroy government unions. One study estimates that the state and local public sector union membership rate in collective bargaining states, 53.7 percent, will fall by 8.2 percentage points. The experience of states that have recently passed right-to-work laws suggests that some public unions may lose 10 percent to 30 percent of their memberships. Such declines imply losses of tens of millions of dollars in dues money. State and local government unions will come to resemble unions in the federal government, where agency fees are prohibited.

Major organizing efforts to stave off membership losses have been underway since 2014. Across the country, unions have been surveying their members to find out their priorities and asking employees to sign new union cards. Even with reduced memberships, public unions will remain potent forces in many states.

Nonetheless, taking public unions down a peg has another important effect: It will rebalance the playing field in states where the power of unions make it impossible for governments to address the rising costs of pensions and retiree health care, which are crowding out other spending. Oregon, for example, has $25 billion in unfunded pension liabilities, but the public employees’ union has adamantly opposed increasing members’ contributions.

In principle and in practice, the court’s ruling is a good one. It protects public workers’ constitutional rights and will improve the fiscal health of state and local governments. And public unions can go on politicking — just with the money of workers who actually want to be their members.

As an aside, it’s worth noting that the outcome here has no impact on private-sector unions. Since the jobs involved in those cases are not government jobs, the First Amendment typically would not apply. There may be some exceptions, of course, in cases where there are laws requiring that people who choose not to be members of private-sector unions to nonetheless still be pay dues to that union, but that issue was not before the Court in this case and would have to be the subject of future litigation.

Beyond the legal issues, there are also legitimate questions about the entire idea of public employee unions that have been raised in the past, not only by conservatives but also by President Franklin D. Roosevelt himself:

Roosevelt’s reign certainly was the bright dawn of modern unionism. The legal and administrative paths that led to 35% of the nation’s workforce eventually unionizing by a mid-1950s peak were laid by Roosevelt.

But only for the private sector. Roosevelt openly opposed bargaining rights for government unions.

“The process of collective bargaining, as usually understood, cannot be transplanted into the public service,” Roosevelt wrote in 1937 to the National Federation of Federal Employees. Yes, public workers may demand fair treatment, wrote Roosevelt. But, he wrote, “I want to emphasize my conviction that militant tactics have no place” in the public sector. “A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government.”

And if you’re the kind of guy who capitalizes “government,” woe betide such obstructionists.

Roosevelt wasn’t alone. It was orthodoxy among Democrats through the ’50s that unions didn’t belong in government work. Things began changing when, in 1959, Wisconsin’s then-Gov. Gaylord Nelson signed collective bargaining into law for state workers. Other states followed, and gradually, municipal workers and teachers were unionized, too.

These are policy matters beyond the purview of the Court, of course, but they go to the reason why the outcome in this case is so important. Public employee unions are a powerful force, and not necessarily a beneficial one for either their members or for taxpayers. To the extent that their power can be restrained, perhaps we will all benefit.

Here’s the decision:

Janus v. AFSCME Et Al by Doug Mataconis on Scribd

FILED UNDER: First Amendment, Labor Unions, Law and the Courts, Supreme Court, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. PJ says:

    I want to dedicate all the recent 5-4 decisions to the people on the left arguing that there was no difference between Clinton and Trump.

  2. george says:


    Interestingly enough, many conservatives agree with you, and are using the 5-4 decisions as justification for voting for Trump despite his openly racist, sexist ways.

    That is, the argument is that people voted for control of the supreme court rather than for Trump or Clinton.

    Me, I think 95% of people just voted for the same team they always voted for, and are indifferent to the 5-4 decisions (if they’re even aware of them – despite the impression one gains on political sites, most of the 120 million voters couldn’t name one person on the supreme court, let any of their decisions).

  3. MBunge says:

    This is a fascinating situation because usually both sides at least pretend to be arguing over lofty principles but this time one side is almost nakedly conceding that it’s concerned with partisan political advantage.

    And these decisions should really be dedicated to all the people whining about Trump violating “norms” when they ultimately shrugged their shoulders and went along with Mitch McConnell deciding that Barack Obama only got to be President for seven years.


  4. drj says:

    In both cases, the Plaintiffs are regular union members who simply happen to disagree with the idea that at least some portion of the dues they are compelled by law to pay in order to work are being used to advance causes and candidates that they disagree with.

    Well, except that the Supreme Court struck down not mandatory union dues (which weren’t even in contention), but mandatory agency fees, which are explicitly designated to cover only the costs of collective bargaining.

    Just as with yesterday’s decision on the California law that required “crisis pregnancy centers” to provide abortion information (but only when these centers also offer medical services), you somehow manage to not mention the crucial bit of information when it comes to your personal opinion regarding the merits of the Supreme Court’s ruling.

    I find that rather suprising.

  5. Michael Reynolds says:

    These are policy matters beyond the purview of the Court, of course, but they go to the reason why the outcome in this case is so important. Public employee unions are a powerful force, and not necessarily a beneficial one for either their members or for taxpayers. To the extent that their power can be restrained, perhaps we will all benefit.

    If you laid a graph of union membership over a graph of the declining income of average Americans you’d see a suggested correlation. Causation? I suspect so. The idea popular under Reagan that we were all free agents who could sell their labor on an open market has been decidedly annihilated by reality. The only power a working person has is through a union.

    So now we’ll see this segment of the middle class driven like all the others into economic decline. We’ll have a smaller middle class and a richer upper class. That is of course the point of this decision. The working man must be rendered utterly powerless by means of deliberately-stoked racial division and union busting.

  6. An Interested Party says:

    So much for that whole stare decisis thing…at least we can now get rid of the pretense of precedent…the law is whatever five Supreme Court judges decides it is…nothing more, nothing less…and what if these judges use the 1st Amendment argument in the future to strike down private unions as well…this court is a plutocrat’s dream come true…

  7. TM01 says:

    Gotta say it….


    Good to see that even Doug still supports the First Amendment here. There really is ZERO place for public sector unions. As despicable a racist as FDR was, he was indeed correct on the subject of public sector unions. It all boils down to money laundering. Govt funds go to employees, are taken by the union, who in turn gives it to the politicians….who expand govt, which leads to more money to the union, then back to the politicians.

    It’s really too bad that the liberal members of SCOTUS continue to put politics above Rights.

    It will also be interesting to see how much union membership drops after this ruling. To see how many people truly support the unions and find they are really worth the cost.

    And remember kids, all of you are still free to send the SEIU all the money that you want.

  8. inhumans99 says:

    Wow…lots of business owners are laughing all the way to the bank with this decision, not a member of a union but talk about folks cutting off their nose to spite their face.

    When tons of blue collar workers eventually bemoan how they are getting forked over by company management the very folks who are screwing them over will smile and plop down an article with this ruling in front of the frustrated worker.

    Good grief.

  9. FYI, the embed of the opinion wasn’t working properly.

    I’ve updated the post and it appears to be fine now.

  10. TM01 says:

    @An Interested Party:

    So much for that whole stare decisis thing…

    Oh look!

    Someone who literally wants to put black people back in chains!!

  11. TM01 says:


    When tons of blue collar workers eventually bemoan how they are getting forked over by company management the very folks who are screwing them over will smile and plop down an article with this ruling in front of the frustrated worker.

    Seriously, dude.
    Did you even read the article?

  12. An Interested Party says:

    As despicable a racist as FDR was…

    Oh that’s rich coming from a Trump supporter…that would be like Trump (or even TM01) calling someone else a blowhard…

  13. Guarneri says:

    Heh. So unions can’t fund pols who vote them sweet contracts and pensions that are bankrupting states

    Damned shame there.

  14. An Interested Party says:

    Someone who literally wants to put black people back in chains!!

    No, that would be more like your hero…hell, he wanted to execute a whole bunch of black and brown people who were innocent of the crime he accused them of

  15. TM01 says:

    @An Interested Party:
    Nice try, Mr. Dred Scot Decision supporter.

    Stop deflecting from your racism.

    #StareDecisis FTW

  16. Kathy says:

    Could government agencies sign people to union and non-union contracts?

    I suppose not.

  17. James Joyner says:


    And these decisions should really be dedicated to all the people whining about Trump violating “norms” when they ultimately shrugged their shoulders and went along with Mitch McConnell deciding that Barack Obama only got to be President for seven years.

    I’d wager that most of the Republicans or former Republicans who are complaining about Trump violating norms were the same subset of us who thought McConnell’s actions were an outrageous violation of norms that would come back to bite the GOP the next time a Republican President and Democratic Congress coincided.


    Wow…lots of business owners are laughing all the way to the bank with this decision, not a member of a union but talk about folks cutting off their nose to spite their face.

    This ruling doesn’t impact business owners; it’s about public sector unions.

  18. James Joyner says:


  19. Daryl and his brother Darryl says:

    Breaking…Kennedy is retiring…

  20. Daryl and his brother Darryl says:

    I’ll wait for Doug…but Roe v. Wade is done for.
    Gay rights…done.
    Freedom of so-called Christians to impose their faith on you…judicially enshrined for decades to come.

  21. An Interested Party says:

    Stop deflecting from your racism.

    Stop projecting your own failings (much like your hero does)…and you might want to tone it down a bit, lest you are banned from this website like your illustrious fellow traveler…

    Gay rights…done.

    I’d love to see the justification for overturning Obergefell v. Hodges

  22. inhumans99 says:

    @James Joyner:

    I was being too broad with my comment, I guess the point I was trying to make is that the way I see it anything that weakens a worker’s position in relation to their superiors is not how we MAGA.

    I do feel that this is going to gore as many Democratic oxen as Republican’s because lots of folks in red states might be in for a very unpleasant surprise when they find that no one has their backs.

  23. wr says:

    Meanwhile in Oklahoma, two of the ten Republicans who voted against funding schools after teacher walkouts lost their primaries; seven more are forced into run-offs.

    Yes, this decision is another disastrous betrayal of anyone but the rich (and the truly stupid, like TM01), and it will hurt working people across the country — but just because the government of the rich by the rich and for the rich is trying desperately to wipe out any organized opposition, that opposition has started rising up spontaneously. Look at the teacher revolts across red states — and the effect they’ve had.

    The McConnels of the world have decided that they can impose any kind of government they want on the people, and they can use any kind of trick to get it — whether by legalizing bribery in campaigns or outrageous gerrymanders or simply by prohibiting anyone to vote if they’re not going to vote Republican — and even with Kennedy they had a pet Supreme Court that allowed it all.

    But ultimately this government depends on the consent of the governed. What happens when the people are pushed so far they decide not to grant it anymore?

  24. An Interested Party says:

    I was being too broad with my comment…

    Were you? What’s stopping five judges from using the same free speech argument against private unions that they’ve used against public unions…

  25. wr says:

    @An Interested Party: “I’d love to see the justification for overturning Obergefell v. Hodges…”

    Butt sex is icky.

  26. Just nutha ignint cracker says:

    @Kathy: Actually, the unions could, as I understand things from serving on negotiation committees, decline to represent the non-members and demand that they negotiate their own contracts, but IANAL, and I could be wrong. I know that when I was an NEA member, our local declined to represent non-members in labor disputes.

    The problem is that it will take a while for most agencies to get up to speed on forking non-members over and while that is happening, most agencies will simply offer the same stuff to everyone. But eventually, even government’s version of Capital will get with the program and realize that every dollar I’m not paying to you is graft for me and will see the bottom line clearly. I’m old now, and none of this stuff troubles me anymore, but greed of covered employees destroyed private sector unions back when I was urging my fellow members to not agree to start new employees at 47% of what we made and cap their wages at 80%, so I expect free ridership will do similar to the public sector unions now. Eventually, workers will rediscover the advantages of collective bargaining, but I doubt I’ll be around to see it.

  27. Kathy says:

    @Just nutha ignint cracker:

    Some government agencies in Mexico have union and non-union employees. I know they have different contracts, but also that 1) they’re quite similar and 2) the non-union employees are usually in higher positions.

  28. gVOR08 says:

    It just galls me to see someone like Alito pretending to care deeply about the “free speech” rights of free rider employees when there can’t be an informed person in the country who doesn’t know he’s simply taking advantage of the opportunity to impliment the anti-union agenda of the Republican Party. And of course he can’t be an activist judge since he’s a Republican.

    What @Michael Reynolds: said. The decline of unions and income inequality go hand in hand. Unions are necessary to the existence of a middle class, a middle class is necessary to have a prosperous, secure nation, unions cannot stand up to oligarchic power without government support. Ergo, government must support unions. But that’s a pragmatic case that means nothing to conservatives.

  29. gVOR08+only 2 says:

    Once stare decisis is gone, the courts are no longer an institutional barrier to oligarchy.

  30. An Interested Party says:

    It certainly is a lovely kind of bait-and-switch that conservatives have gotten away with…first, they argue that money is speech which opens the floodgates for corporations and unions to influence elections, then they kneecap unions, leaving only the wealthy as the primary group who can influence elections…brilliant…plutocrats, rejoice…

  31. Just nutha ignint cracker says:

    @gVOR08: Forgive my naivety, but why are you supposing that Conservatives/Republicans care about the prosperity of the nation? As to national security, the oligarchs Conservatives/Republicans will always say that there’s no evidence that a thriving middle class makes the nation more secure, rather that such security is linked to other factors–strong army, immigration limits, etc.

  32. gVOR08 says:

    @Just nutha ignint cracker: As I said,

    But that’s a pragmatic case that means nothing to conservatives.

    I’ve said before in these threads that Republicans don’t have an ideology, they have a business plan. They give big tax cuts and freedom from regulation to rich people and rich people give them donations and other support to win elections.
    As far as I’m concerned, there isn’t a one of them who wouldn’t burn the country to the waterline for a five thousand dollar contribution.