About two years ago, Justice Samuel Alito appeared poised to deliver a long-awaited victory to the Republican Party. Alito, who authored two opinions targeting public sector unions, seemed to have the five votes he needed to strike a major blow to organized labor’s finances, causing many unions to wither. It would have been a coup for the GOP — serving both the party’s ideological goals and undermining a major source of Democratic organizing power in the process.
Then Justice Antonin Scalia died, Republicans lost their majority on the Supreme Court, and this broader attack on public sector unions appeared dead.
That was then. This is now.
On Wednesday, the Supreme Court voted along party lines to effectively defund many public sector unions. This outcome was made possible thanks to Senate Republicans, who held open Scalia’s vacant seat for a year until a man who lost the popular vote by 2,864,974 votes could fill it with his own pick. The Court’s decision in Janus v. AFSCME is a tribute to American undemocracy.
The holding of Janus is that anti-union workers have a constitutional right to get something for nothing from the union that represents them and their colleagues.
Unions are required, by law, to bargain on behalf of every worker in a unionized shop, regardless of whether a particular worker joins the union. Thus, non-members receive all of the benefits that unions negotiate at the bargaining table, even if they contribute nothing to this effort. These benefits can be significant — one study, for example, found that unionized workers are paid nearly 12 percent more than their non-union counterparts.
The problem with this arrangement is that it potentially creates a free-rider problem. If workers can get something for nothing, then many of them will. Collective bargaining, handling grievances, and other core union activities are all expensive. If workers can get the benefits of these activities without paying a dime for them, the union could quickly run out of money and collapse, and then no one will receive the benefits of being in a union.
To avoid this free-rider problem, many union contracts provide for “agency fees” or “fair share fees.” These contracts require non-members to contribute their share of the costs of collective bargaining and similar expenses. Non-members generally have a right to refuse to contribute to a union’s political activities, but they can be required to reimburse the union for the services it provides to non-members.
Except that now, under Janus, public sector unions may no longer collect these fees. Janus relies on a rather aggressive reading of the First Amendment to hold that agency fees are unconstitutional, at least within the public sector.
Alito’s opinion compares agency fees to a state requiring “all residents to sign a document expressing support for a particular set of positions on controversial public issues.” Public sector unions bargain over matters involving public spending and the rights of public employees. These, at least according to Alito, are inherently political issues and an employee cannot be required to contribute to them by a collective bargaining agreement.
One major problem with this conclusion, however, is that it could be stretched to reach truly absurd results — for, if bargaining over employment matters now counts as First Amendment-protected speech, nearly any labor law could fall. A minimum wage law could be characterized as a ban on negotiations for low wage jobs. Or a law requiring employers to provide certain health benefits could become a ban on negotiations over health care.
As Justice Elena Kagan writes in her dissenting opinion, “Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech.”
The practical effect of Janus is that many unions will be starved for money. That means less benefits for workers, and a stronger playing field for Republican candidates.
If Chief Judge Merrick Garland — whom President Obama nominated to fill the seat currently occupied by Neil Gorsuch — were now on the Court, Janus would have almost certainly come down the other way. And Republicans wouldn’t have received the electoral boost Gorsuch gave them today.
Unlike Donald Trump, Obama won an outright majority in both of his presidential elections. But Democrats lacked the votes to confirm Garland because the Senate is so malapportioned that its membership only bears a vague resemblance to the preferences of the electorate.
In 2016, when Senate Republicans successfully blocked Chief Judge Merrick Garland’s nomination to the Supreme Court, the 46 Democrats in the Senate represented 20 million more people than the 54 Republicans. In 2017, when Neil Gorsuch was confirmed to occupy this seat, the 45 senators who opposed his confirmation represented more than 25 million more people than the senators who supported him.
Undemocracy breeds undemocracy. Gorsuch’s confirmation means that our workplaces will be less democratic, and so too will be our elections. And that confirmation only happened because a second-place president was able to appoint Gorsuch to a seat held open by a minority party.