Janus v. American Federation of State, County and Municipal Employees, Council 31
Case Year: 2018
Case Ruling: 5-4
Opinion Justice: Alito
FACTS
Under Illinois law state and local government employees are permitted to unionize. If the majority of employees in a bargaining unit votes to be represented by a union, that union is designated as the exclusive representative of all that unit’s employees. Workers do not have to join the union, but whether they join or not, the union is their official representative. The union may negotiate with the employer on issues relating to wages, hours, and conditions of employment, as well as policy matters such as layoffs, workforce size, promotion methods, and nondiscrimination rules. Individual employees may not negotiate on their own behalf or designate any other representative to negotiate for them. The law requires unions to represent fairly all employees regardless of membership status.
Employees who do not join the union are not assessed union dues. However, they are required to pay an “agency fee” to compensate the union for activities germane to the union’s duties as a collective bargaining representative (called “chargeable” expenses). These funds do not support union projects that are political or ideological (called “nonchargeable” expenses). State law does not well define the difference between chargeable and nonchargeable expenditures, but expenses for political and electoral activities are clearly nonchargeable. The fee may cover expenses over which controversies sometimes arise, such as lobbying, attending conferences, social activities, advertising, and litigation. The size of the agency fee initially is determined by the union and then certified by the employer. Employees annually are sent a statement explaining the calculation of the fee (known as a “Hudson notice”). Once determined, the employer deducts the fee from the employee’s wages. In this case, agency fees amounted to 78 percent of full union dues.
Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. His employment unit is represented by Council 31 of the Federation of State, County and Municipal Employees. Janus refuses to join the union because he opposes many of its policy positions. He believes that the union’s bargaining strategies fail to appreciate Illinois’s fiscal crisis and does not represent his best interests or those of Illinois citizens. He, therefore, objects to the $535 annual agency fee he must pay to subsidize the union’s efforts. As a consequence, he and two other employees took legal action to have the agency fee law struck down as coerced political speech in violation of their First Amendment rights. In Abood v. Detroit Board of Education (1977), the Court upheld a similar state labor law against a First Amendment challenge. On the basis of the Abood decision, a federal district court dismissed Janus’s claim and the court of appeals affirmed. The Supreme Court accepted the case for review with the purpose of reconsidering the Abood precedent.
OPINION
Justice Alito delivered the opinion of the Court
We upheld a similar law in Abood v. Detroit Bd. of Ed. (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.
In Abood, the Court upheld the constitutionality of an agency-shop arrangement like the one now before us, but in more recent cases we have recognized that this holding is “something of an anomaly,” Knox v. Service Employees (2012), and that Abood’s “analysis is questionable on several grounds,” Harris [v. Quinn (2014)]. We have therefore refused to extend Abood to situations where it does not squarely control, see Harris, while leaving for another day the question whether Abood should be overruled.
We now address that question. We first consider whether Abood’s holding is consistent with standard First Amendment principles.
The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard (1977). The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees (1984). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia Bd. of Ed. v. Barnette (1943).
Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.
Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening …
Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” We have therefore recognized that a “significant impingement on First Amendment rights” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” Knox.
Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified “levels of scrutiny” to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox, Harris, Friedrichs v. California Teachers Assn. (2016).
In Knox, the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. Even though commercial speech has been thought to enjoy a lesser degree of protection, prior precedent in that area had applied what we characterized as “exacting” scrutiny, a less demanding test than the “strict” scrutiny that might be thought to apply outside the commercial sphere. Under “exacting” scrutiny, we noted, a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.”
In Harris, the second of these cases, we again found that an agency-fee requirement failed “exacting scrutiny.” But we questioned whether that test provides sufficient protection for free speech rights, since “it is apparent that the speech compelled” in agency-fee cases “is not commercial speech.”
[P]etitioner in the present case contends that the Illinois law at issue should be subjected to “strict scrutiny.” The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox and Harris.
In Abood, the main defense of the agency-fee arrangement was that it served the State's interest in “labor peace.” By “labor peace,” the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, “inter-union rivalries” would foster “dissension within the work force,” and the employer could face “conflicting demands from different unions.” Confusion would ensue if the employer entered into and attempted to “enforce two or more agreements specifying different terms and conditions of employment.” And a settlement with one union would be “subject to attack from [a] rival labor organizatio[n].”
We assume that “labor peace,” in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded …
The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees. Nevertheless, nearly a million federal employees—about 27% of the federal work force—are union members … Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that “labor peace” can readily be achieved “through means significantly less restrictive of associational freedoms” than the assessment of agency fees.
In addition to the promotion of “labor peace,” Abood cited “the risk of ‘free riders’” as justification for agency fees. Respondents and some of their amici endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs.
Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.
Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments … are generally insufficient to overcome First Amendment objections.” Knox. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech? …
Those supporting agency fees contend that the situation here is different because unions are statutorily required to “represen[t] the interests of all public employees in the unit,” whether or not they are union members. Why might this matter?
We can think of two possible arguments. It might be argued that a State has a compelling interest in requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound.
First, it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that designation. On the contrary, designation as exclusive representative is avidly sought …
Nor can such fees be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation. That duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers' rights. Protection of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious “constitutional questions [would] arise” if the union were not subject to the duty to represent all employees fairly.
In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other First Amendment context. We therefore hold that agency fees cannot be upheld on free-rider grounds.
Implicitly acknowledging the weakness of Abood’s own reasoning, proponents of agency fees have come forward with alternative justifications for the decision, and we now address these arguments.
The most surprising of these new arguments is the Union respondent’s originalist defense of Abood. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees …
… [T]he First Amendment’s original meaning [does not] support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “contemptuous or disrespectful words against the President” and other officials, and an 1801 directive limiting electioneering by top government employees. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption) —not that public employees’ speech was entirely unprotected …
In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment.
The principal defense of Abood advanced by respondents and the dissent is based on our decision in Pickering [v. Board of Education (1968)], which held that a school district violated the First Amendment by firing a teacher for writing a letter critical of the school administration. Under Pickering and later cases in the same line, employee speech is largely unprotected if it is part of what the employee is paid to do, see Garcetti v. Ceballos (2006), or if it involved a matter of only private concern, see Connick [v. Myers (1983)]. On the other hand, when a public employee speaks as a citizen on a matter of public concern, the employee’s speech is protected unless “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees outweighs the interests of the [employee], as a citizen, in commenting upon matters of public concern.” Harris. Pickering was the centerpiece of the defense of Abood in Harris and we found the argument unpersuasive. The intervening years have not improved its appeal …
We see no good reason, at this late date, to try to shoehorn Abood into the Pickering framework.
Even if that were attempted, the shoe would be a painful fit for at least three reasons.
First, the Pickering framework was developed for use in a very different context—in cases that involve “one employee’s speech and its impact on that employee’s public responsibilities.” United States v. Treasury Employees (1995). This case, by contrast, involves a blanket requirement that all employees subsidize speech with which they may not agree …
Second, the Pickering framework fits much less well where the government compels speech or speech subsidies in support of third parties. Pickering is based on the insight that the speech of a public-sector employee may interfere with the effective operation of a government office. When a public employer does not simply restrict potentially disruptive speech but commands that its employees mouth a message on its own behalf, the calculus is very different. Of course, if the speech in question is part of an employee’s official duties, the employer may insist that the employee deliver any lawful message. Otherwise, however, it is not easy to imagine a situation in which a public employer has a legitimate need to demand that its employees recite words with which they disagree. And we have never applied Pickering in such a case …
Third, although both Pickering and Abood divided speech into two categories, the cases’ categorization schemes do not line up. Superimposing the Pickering scheme on Abood would significantly change the Abood regime …
For all these reasons, Pickering is a poor fit indeed.
… It is … not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views. Nothing in the Pickering line of cases requires us to uphold every speech restriction the government imposes as an employer.
For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise …
We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. 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. Those unconstitutional exactions cannot be allowed to continue indefinitely.
All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the “special justification[s]” for overruling Abood.
For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees …
This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting
For over 40 years, Abood v. Detroit Bd. of Ed. (1977), struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.
That holding fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively. Abood allowed governments to do just that. While protecting public employees’ expression about non-workplace matters, the decision enabled a government to advance important managerial interests—by ensuring the presence of an exclusive employee representative to bargain with. Far from an “anomaly,” the Abood regime was a paradigmatic example of how the government can regulate speech in its capacity as an employer.
Not any longer. Today, the Court succeeds in its 6-year campaign to reverse Abood. See Friedrichs v. California Teachers Assn. (2016); Harris v. Quinn (2014); Knox v. Service Employees (2012). Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.
Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today …
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. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.
Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification”—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.
Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today, that healthy—that democratic—debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.”
And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last. 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. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. 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.