Supreme Court To Rule On Mandatory Fees To Public Sector Unions

In its upcoming term, the Supreme Court will hear a case that is likely to have a significant impact on the powers of public-sector unions.

Supreme Court Building

Yesterday, the Supreme Court agreed to hear a case involving public-sector unions that could go a long way toward limiting the power of such unions to influence politicians outside of the collective bargaining process:

With a conservative majority back in place, the Supreme Court on Thursday announced that it will once again hear a challenge to the required payment of fees to ­public-employee unions, an important but controversial tool for the American labor movement.

Some public employees say their free-speech rights are violated by the requirement, and conservative legal activists have at least twice asked the Supreme Court to overturn a decades-old precedent that allows “agency fees.” Approximately 20 states allow them.

It appeared the challenge would be successful the last time the issue was before the court, in January 2016. But Justice Antonin Scalia died a month later, and the court announced that it had split 4 to 4 on the issue.

With a conservative majority back in place, the Supreme Court on Thursday announced that it will once again hear a challenge to the required payment of fees to ­public-employee unions, an important but controversial tool for the American labor movement.

Some public employees say their free-speech rights are violated by the requirement, and conservative legal activists have at least twice asked the Supreme Court to overturn a decades-old precedent that allows “agency fees.” Approximately 20 states allow them.

It appeared the challenge would be successful the last time the issue was before the court, in January 2016. But Justice Antonin Scalia died a month later, and the court announced that it had split 4 to 4 on the issue.

The lead plaintiff in the case the court accepted is Mark Janus, a child-support specialist at the Illinois Department of Healthcare and Family Services.

Union leaders responded to the court’s decision to take the case by saying the real players behind the effort are those who want to blunt the effect of public-employee unions, the most muscular part of today’s labor movement.

“The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people,” said Lee Saunders, president of the American Federation of State, County and Municipal Employees.

“The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to deliver yet another attack on working people by striking at the freedom to come together in strong unions,” he said.

As noted, this isn’t the first time that the Supreme Court has agreed to hear a case involving this issue. In the summer of 2015, the Court accepted an appeal in Friedrichs v. California Teachers Associationa case in which a California public school teacher was objecting to state laws requiring them to pay dues to the teacher’s union notwithstanding the fact that they had objections to the political positions that the union took outside the collective bargaining process. After it heard the case in January 2016, the Court appeared poised to rule that such fees are unconstitutional pursuant to the First Amendment in that a private citizen cannot be compelled by the state to support political positions they disagree with. When Justice Scalia died roughly a month later, the outcome of that case was thrown into doubt due to the fact that his vote, which likely would have sided with the conservatives and the Plaintiff, and the case ended in a 4-4 tie that left the decision of the Ninth Circuit Court of Appeals in favor of the union standing. Now, with Justice Scalia’s seat filled by Justice Gorsuch, it seems as if conservatives will once again have the majority they need to overturn a precedent that they have been seeking to undo for the past forty years.

The case in question is Abood v. Detroit Board of Educationa 1977 case that ruled that public sector unions could require non-union members to pay fees for services provided to all employees regardless of union members such as contract negotiations and administration. In recent years, though, lawyers representing non-union members of such unions have argued that requiring a non-member to pay what amounted to dues to an organization they aren’t a member violated their First Amendment rights with respect to both an individuals freedom of speech and free association.  As I’ve noted before, there are real First Amendment issues involved in cases such as this, not only in the manner in which a person in the Plaintiffs are forced to join a union in order to hold a job, and also due to the issue of the compelled subsidization of political speech via union dues. It’s not a completely clear-cut issue, of course. People in the position of the Plaintiffs in cases such as this do present something of a ‘free rider’ problem to the extent they benefit from the terms negotiated by the union without contributing to the costs of collective bargaining. However, that fact alone is arguably not a sufficient answer to the problem created when union dues are used for purposes not related to collective bargaining. It’s well-settled that people cannot be compelled to speak on political matters as a condition of employment and cannot be compelled to subsidize that speech. Additionally, even under a system where the fees charged to non-members are reduced to cover only “non-political” activities, the fact remains that the fungible nature of money means that the fees they pay ultimately do help subsidize speech that a member may disagree with. One solution to that, obviously, would be strict requirements that unions limit their activities to collective bargaining, but that would First Amendment problems of its own and would be largely unenforceable.

In recent years, though, the Court’s decision in Abood has come under increasing criticism, especially from the political right, which has long viewed public sector unions skeptically. The result has been a series of court challenges that have slowly but surely chipped away at the Abood precedent without explicitly overruling it. The most recent of those cases was a case out of Illinois that challenged a law that required mandatory unionization of home healthcare workers tied unto the state’s Medicaid system. In that case, Harris v. Quinn, the Court invalidated the rule but did not go as far as some thought they might and attack the precedent in Abood itself. When the Court accepted the appeal in Freidrich, many conservatives hoped, and many on the left feared, that the Court would use it to strike the final nail into Abood’s coffin and have the effect of seriously reducing the power and influence of public-sector unions such as the SEIU and AFSCME. As noted, only Justice Scalia’s death seems to have delayed that seeming inevitability. This time around, with the Court back to its full membership of nine Justices and the Court’s conservatives back to the position they were in prior to Scalia’s death, it seems as though it is going to be difficult if not impossible for the Justices to avoid dealing with Abood and the fundamental issues that it presents. Given the majority in Harris, it would seem that the odds are quite good that the Court will rule against the union here, which is no doubt the reason that public employee unions and their allies are seemingly so unnerved just by the fact that the Court has accepted the case for review at all.

As an aside, it’s worth noting that the outcome in this case would have no real 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 must still be pay dues to that union, but that issue is 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 this case, and Harris, are important and why they are different from issues surrounding unions in the private workplace. 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.

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. KM says:

    I’m wondering how many of these complainers would be willing to forgo the union protection and benefits (become an at-will employee) just to save themselves some bucks from going to causes they don’t agree with. You will never agree with every decision that a group you are associated with makes so the choice is to leave the group. However, that takes with it the healthcare, scheduled pay raises, seniority and all the other perks that make one want to go into a public-sector job in the first place. Most people wouldn’t *want* to take a government job without the (union’s) benefits since it certainly doesn’t pay too much salary-wise.

    This is very much a want my cake and eat it too scenario. Want the stable gov job with the nice bennies? That’s what the union negotiated so congrats, you’re union now. Don’t want to be union – guess what, no sweet bennies! I’m sure the feds would love to employ you at minimum wage.

  2. CSK says:

    OT, but Tom Price has resigned.

  3. Democracy says:

    Left-wing teachers’ unions free-ride on their moderate, conservative, and nonpolitical members — not the other way around. They get away with that because teachers are captive and can’t opt out of paying dues. As a result, left-wing teachers’ unions can endorse kooky policies that undermine school safety, or undermine teachers’ due process rights.

    In one instance, when the Obama administration curtailed teachers’ traditional due-process rights, the NEA and AFT celebrated and backed its action, even though that disturbed some teachers, as well as the American Association of University Professors. Collective bargaining agreements often prescribed a clear and convincing standard of evidence in disciplinary proceedings. The Obama administration ordered that schools lower the standard to a lower burden of proof for one disfavored category of accused student or teacher: those accused of sexual harassment or assault.

    On Sept. 22, in response to requests from civil-liberties groups like the Foundation for Individual Rights in Education, the Trump administration overturned the Obama Administration’s action by rescinding its April 4, 2011 Dear Colleague Letter restricting due process rights:

    The NEA also endorsed Obama-era federal guidelines restricting student discipline in grade schools, which, when followed, resulted in violence in several large urban school districts (even though the guidelines were so extreme they were criticized by people across the political spectrum — critics said they effectively required racial quotas in school suspensions, unless a school district eliminated suspensions for all but the most extreme acts of violence):

  4. gVOR08 says:

    Back in the sixties J. K. Galbraith wrote of “countervailing power”. He noted that the only organizations that could counter the power of large corporations were the government and large unions. Corporate interests have succeeded in largely eliminating private sector unions, want to kill the public sector unions, and are well along on neutering government. I hope we enjoy our nw corporate masters.

  5. Bob The Arqubusier says:

    @KM: So, why not let them live with the consequences of their bad choices?

    Oh, that’s right. They need to be protected from such burdens as free choice. If they have the right to choose, then they might choose poorly and hurt themselves, and we can’t have that, can we? That’s why they need their betters to take on that burden for them, to make their choices for them. And all you ask in return is that they give up a bit of their freedom and a bit of their money. It’s really in their best interests, anyway.

    How noble and self-sacrificing of you, to take on such burdens. God has truly blessed us with you and yours to oversee the lesser ones.

  6. OzarkHillbilly says:

    There is nothing mandatory about the fees paid to the union. If you don’t want to pay them, you quit. And go to work at a nonunion shop, for 65% of the wages, really sh!tty healthcare, and a totally inadequate 401K.

  7. wr says:

    @Bob The Arqubusier: Shorter Jenos: “I work minimum wage, and it’s always been good enough for me. Why should anyone else get more?”

  8. Bob The Arqubusier says:

    @OzarkHillbilly: So, the unions own the jobs?

    What a great little racket.

    The unions collect dues from its members. It gives those dues to politicians, as well as providing them with a large pool of “volunteers” for their elections. Then, once they get elected, they “negotiate” with the officials they just bought over the contracts, including making the schools a union-owned closed shop. And if the officials choose to represent the interests of the taxpayers instead of the unions, then the unions can find another politician they can get elected next time.

    Public sector unions should be banned from any participation in elections. It’s them buying the people on the other side of the negotiations, and the people whose interests are supposed to be represented by the public officials get screwed.

    And the “freedom of association” also includes the freedom to NOT be associated with any private entity if they choose to not be a member.

  9. B. R. Bong says:

    Why would anyone need a Union when seeking employment with the government? I thought government was Loving and Benevolent? It’s almost like people on the left don’t trust Our Leaders.

    One problem with public sector unions is that there’s really no adversarial relationship. The Union wants everything, and there is no fiscal restraint on the other side. It’s not like the employer, govt, has any competition or need to keep costs reasonable. Just raise taxes and day you’re doing it For The Children.

    Eventually you’ll not a limit, bankruptcy, but by that time, the politician and union boss will have made their fortunes. Who cares about the actual workers they are screwing over?

  10. OzarkHillbilly says:

    @Bob The Arqubusier:

    So, the unions own the jobs?

    STEEEEERIKE 1! Try again.

  11. John430 says:

    What bothers me the most about public sector unions is their two-faced “bargaining”. They give political contributions to their own bosses for reelection purposes and then “negotiate” for benefits from these same people simultaneously. That’s like the UAW giving bonuses to Ford or GM executives in order to get a pay raise.

  12. An Interested Party says:

    They give political contributions to their own bosses for reelection purposes and then “negotiate” for benefits from these same people simultaneously.

    Oh, like how corporations and rich fat cats give political contributions to politicians for reelection purposes and then expect benefits from these same people…I suppose you’re against that too…

  13. Mikey says:

    @An Interested Party: That’s the kind of corruption “conservatives” like.

  14. Bob The Arqubusier says:

    @An Interested Party: Yeah, there are some shallow similarities — as long as you’re willing to overlook that we’re talking about public sector unions here. And while you’re willing to because it fits your prejudices, others aren’t.

    @OzarkHillbilly: OK, the unions don’t own the job. They just get to demand that if you want to be a teacher, you have to join the union and pay the dues. Don’t wanna join? Then you don’t get the job.

    Except in some rare cases, in a stroke of generosity, they let you teach without joining the union. Just as long as you still pay the dues. So you can join and pay dues, or not join and pay dues. All that matters is that the union gets its vig…

  15. An Interested Party says:

    Yeah, there are some shallow similarities…

    Ahh, so corporations and the wealthy turning politicians into their personal wh@res is just fine but unions should be forbidden from having any influence on politicians, gotcha…

  16. B. R. Bong says:

    Conservatives like to see Fat Cats give donations in exchange for political favors?
    Bull shit.
    I want govt doing less. That also means less ability to interfere in the market.

    Let’s talk about fat cats tho. Tesla would be out of business if not for the special deals it’s gotten. Then there was Solyndra. Fisker.

    I’m all for ending special breaks and deals to businesses. ALL of them tho.

    Public sector unions are bad no matter how you look at it.

  17. Matt says:

    @B. R. Bong: Just want to point out that you’re not playing fair with the numbers. The big three would be out of business too if not for the special deals they’ve gotten.