Supreme Court Ends Terrible Scourge Of Teachers Earning Living Wages

In Janus, the Supreme Court dealt a body blow to organized labor.

Public sector unions, the organizations that fight to offer teachers and sanitation workers and the like the opportunity to barely scrape by in a country of almost unfathomable wealth, have suffered a judicially delivered prick designed to drive them into irrelevance.

After 41 years as a bedrock of labor law, Abood, declaring that public unions can assess a nominal fee on workers who don’t join the union but nonetheless benefit from the union’s negotiated contract, is dead. Cause of death? Justice Alito’s mendacious musings in Knox, a case involving unions where Alito offered, apropos of nothing at issue in the case, that he’d like to see Abood gone and that he had a particularly disingenuous plan to kill it.

Abood addressed the problem of free-riders. It died over the problem of “free speech” in the hands of the cynical half-wits of FedSoc. As Justice Sotomayor notes in a one-paragraph dissent:

Having seen the troubling development in First Amendment jurisprudence over the years, both in this Court and in lower courts, I agree fully with JUSTICE KAGAN that Sorrell—in the way it has been read by this Court — has allowed courts to “wiel[d] the First Amendment in… an aggressive way” just as the majority does today.

Today is, of course, not unexpected. We pronounced the death of Abood in early 2016 when Justice Scalia showed up at oral argument in Friedrichs and removed any doubt that he might be the swing vote — yes, he was the expected swing vote here — that could save the precedent. But his death soon after argument forced a deadlock that saved the 4 decade-old decision from Justice Alito’s wrath. At the time, who could have predicted that the United States Senate would engineer a constitutional crisis and force the Supreme Court to limp through a year with only eight justices rather than perform one of their few prescribed duties and actually vote on Chief Judge Merrick Garland’s nomination? A gobsmackingly poorly managed campaign and the machinations of an embarrassingly negligent media later and America installed a grifter who lost by millions of votes who got the chance to fill the lifetime post with Judge Gorsuch. So much for the “let the American people decide” trope!

Would Gorsuch join the right-wing attack on public unions, or might he adopt the more cautious, precedential approach that many thought Justice Scalia might? At oral argument, Gorsuch was conspicuously silent. On the other hand, the only working stiff he enjoys is one frozen to death for dutifully obeying his employer, so the odds on Gorsuch swinging to the defense of labor were low.

And so it was. Gorsuch joined Alito’s assault on public unions and popped labor’s balloon.

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What finally did Abood in, or at least the legalish gobbledy-gook that passes for the justification in this opinion, was the First Amendment as it’s been perverted dating back to at least Citizens United. Once the conservative jurists declared that there’s no distinction between “speech” and “money,” it was only a quick skip to say that money paid to the union that allows that entity to do anything “presents the same dangers as compelled speech.” From there all sorts of mischief is possible.

In the days of Lochner, the courts found a cudgel in “due process” to argue that employers enjoyed free rein to exploit workers. Today, it’s the First Amendment, but the result is the same.

One may wonder how this could be an issue at all. After all, public worker unions already couldn’t compel workers to pay for political speech. If a public school teacher is a die-hard Republican they could not be forced to hand over dues to the union that would be used to campaign for Democratic candidates. That’s long-settled.

But Abood held that this hypothetical teacher still had to pay a smaller fee equivalent to just the portion of union activity that ends up securing the teacher’s contract. It’s not only fair, it prevents the whole endeavor from collapsing under the resentment of union members watching free-riders benefit off the backs of those paying increasingly higher dues, eventually triggering a death spiral of defections, dues increases, and then more defections.

No one really thought there was a lingering compelled speech issue after Abood, but Justice Alito dug deep and crafted a way. As Republicans in statehouses across the country have vilified public school teachers for cheap political points, Justice Alito reasoned that “paying public school teachers” had crossed into the realm of a political debate, and thus a union collecting a fee, even for the limited purpose of negotiating pay for its member teachers, was “subsidiz[ing] private speech on matters of substantial public concern” — functionally compelling political speech.

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One might think that negotiating the salaries of its members forms the core, apolitical purpose of a union. And those people would be right. But if your political philosophy objects to working people securing more than a meager, hardscrabble living, you can twist the rules to the breaking point to get your way.

Is this ridiculous? Yes. On the other hand, the Supreme Court has ruled in the past month that “the allusion to possible, maybe, sort of discrimination” is enough to strike down one constitutional right, while “explicit statements of discriminatory intent just aren’t clear enough” to protect another, so I don’t know why you’re still searching for consistency from these jokers.

From the SCOTUSBlog liveblog, a labor lawyer pointed out that Alito’s opinion was “a complex mess” and when an expert in the field is saying that, you know it’s a doozy. Unfortunately, that’s become par for the course this Term.

Justice Kagan points out that, in addition to free speech, the majority misunderstands “basic economic theory,” which is true, but the Founders didn’t understand economics that didn’t involve selling people so this barb fell on deaf ears. Kagan also invokes the late Justice Scalia in an effort to shame, presumably, stuffed shirt Neil Gorsuch into siding with stare decisis. It seems to have failed:

The majority’s initial response to this reasoning is simply to dismiss it. “[F]ree rider arguments,” the majority pronounces, “are generally insufficient to overcome First Amendment objections.” Ante, at 13 (quoting Knox, 567 U. S., at 311). “To hold otherwise,” it continues, “would have startling consequences” because “[m]any private groups speak out” in ways that will “benefit[ ] nonmembers.” Ante, at 13. But that disregards the defining characteristic of this free-rider argument—that unions, unlike those many other private groups, must serve members and non-members alike. Groups advocating for “senior citizens or veterans” (to use the majority’s examples) have no legal duty to provide benefits to all those individuals: They can spur people to pay dues by conferring all kinds of special advantages on their dues-paying members. Unions are— by law—in a different position, as this Court has long recognized. See, e.g., Machinists v. Street, 367 U. S. 740, 762 (1961). Justice Scalia, responding to the same argument as the majority’s, may have put the point best. In a way that is true of no other private group, the “law requires the union to carry” non-members— “indeed, requires the union to go out of its way to benefit [them], even at the expense of its other interests.” Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 556 (1991) (opinion concurring in part and dissenting in part). That special feature was what justified Abood: “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them.” 500 U. S., at 556.

The Supreme Court set out to devastate unions. They hope they’ve triggered the death spiral that will finally undo them. But to close on a hopeful note, this opinion doesn’t have to end that way. Three years ago, Jason Walta, Senior Counsel at the National Education Association, spoke at an event about the then-expected Friedrichs opinion:

Lots of people on the right end of the spectrum are cheering this as the kill shot for public sector unions. Whatever happens in the Friedrichs case, that’s not going to be the case. We will still be here. We’ll have to organize harder, organize smarter.

They can’t kill unions if members are willing to pick up the slack of free-riders. They can’t kill unions if workers remain unified in the face of the destructive efforts of defectors. They can’t kill unions if members understand and respect the mission. It’s an uphill battle.

But the unions have had an extra couple of years to prepare and they aren’t hurting for motivation.

(Full opinion on the next page…)

Earlier: Farewell Unions — It’s Been Real!
Supreme Court Returns With New Faces, Same Contempt For Working People
The Supreme Court Still Blows But We Have No Idea How To Fix It


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.