In a case with enormous financial implications for teachers鈥� unions, the U.S. Supreme Court once again has agreed to take up a dispute that threatens a 40-year-old precedent giving unions the right to collect fees from nonmembers.
The justices last week granted review in , which could affect the treasuries and political might of all public-employee unions, including the American Federation of Teachers, the National Education Association, and their state and local affiliates.
At risk is the precedent in , the 1977 Supreme Court decision that authorized public-employee unions to charge so-called agency or fair-share fees to employees in the bargaining unit who refuse to join the union. (Twenty-two states allow such arrangements.) Last term, in , the justices deadlocked 4-4 in a case in which a group of nonunion teachers had asked it to overrule Abood.
Various members of the court鈥檚 conservative bloc have been signaling in several decisions since 2012 that they would like to overrule Abood. In the oral arguments in Friedrichs in January 2016, Justice Antonin Scalia had appeared ready to join them. But he died the next month, leading that case to end in a tie, which preserved a lower-court victory by the unions.
The court is now back at full strength with the addition of Justice Neil M. Gorsuch, and formally opened its term on Oct. 2. On Sept. 28, the justices jumped at the first opportunity to add the Janus case to their docket for the new term. Oral arguments are likely in January or February.
鈥淭丑别re are really no new arguments on this, just a change in the membership of the court,鈥� said Matthew W. Finkin, a law professor and labor law expert at the University of Illinois, Urbana-Champaign. 鈥淭丑别 unions have just been waiting for the other shoe to fall.鈥�
A Governor鈥檚 Lawsuit
The appeal in the new case was brought by the Springfield, Va.-based National Right to Work Legal Defense Foundation and the Chicago-based Liberty Justice Center on behalf of Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, who has $44.58 deducted from his paycheck every month to cover the collective-bargaining fees of AFSCME.
鈥淓veryone tells me this case has national implications,鈥� Janus says in a video produced by Liberty Justice Center. 鈥淏ut I don鈥檛 look at it that way. I just look at it as an average guy who is standing up for his own rights of free speech. 鈥� I鈥檓 forced to pay money to a union that then supports political causes that I don鈥檛 agree with.鈥�
Janus and two other state employees who object to the union fees had intervened in a lawsuit brought by Illinois Gov. Bruce Rauner, a Republican who has sought by legislative and legal means to upend the status quo in public employment in the state, as has occurred in nearby states such as Michigan and Wisconsin.
The Illinois suit seeks to have the state鈥檚 public-sector agency law declared unconstitutional on First Amendment grounds. The governor was dismissed from the suit for lack of standing, and the other plaintiffs fell by the wayside because of other issues.
Both a federal district court and the U.S. Court of Appeals for the 7th Circuit, in Chicago, dismissed Janus鈥檚 case, ruling that it was Abood that stands in the way of his claims.
In , the two groups backing Janus argued that his case would make a good vehicle for the Supreme Court to use to finally put Abood to rest.
鈥淛anus and millions of public employees are subject to agency fee requirements that compel them to subsidize the speech of a third party (an exclusive representative) that they may not wish to support,鈥� the appeal says. 鈥淭his significantly impinges on the First Amendment rights of each and every employee who did not choose to subsidize the union鈥檚 advocacy.鈥�
Mark Mix, the president of the National Right to Work Legal Foundation, said in a statement that 鈥渨e are now one step closer to freeing over 5 million public sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government.鈥�
鈥榃e Won鈥檛 Back Down鈥�
Both and , a Democrat who has clashed with Rauner, filed briefs urging the justices not to take up the case.
鈥淭his case is an especially poor vehicle to reconsider Abood鈥榮 holding because it has no factual record,鈥� Madigan鈥檚 brief said.
Lily Eskelsen Garc铆a, the president of the nearly 3 million-member National Education Association, said in a statement, 鈥淲e won鈥檛 back down from this fight and we will always stand up to support working people, our students and the communities we serve.鈥�
The NEA has about 87,000 fee-payers.
Randi Weingarten, the president of the 1.6 million-member American Federation of Teachers, which has about 89,000 fee-payers, issued a statement critical of the court鈥檚 decision to take up the case.
Weingarten said that 鈥渃orporations, wealthy interests and politicians have manufactured Janus as part of their long and coordinated war against unions. ... And under the guise of the First Amendment, they want to overturn a 40-year-old precedent that鈥檚 been reaffirmed numerous times.鈥�
That last point was one stressed by Justice Elena Kagan in a 2014 decision, , a case about home-health workers in Illinois.
In that 5-4 case, the majority held that the workers were not full-fledged state employees, and thus the concept of the union鈥檚 being able to collect agency fees from nonmembers did not apply. The court stopped just short of overruling Abood, but Justice Samuel A. Alito Jr. wrote some 10 pages questioning Abood鈥榮 constitutional underpinnings.
Writing for the dissenters, Kagan said Alito was 鈥渢aking potshots鈥� at the 1977 precedent.
鈥淭丑别 Abood rule is deeply entrenched and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation,鈥� Kagan wrote. 鈥淥ur precedent about precedent, fairly understood and applied, makes it impossible for this court to reverse that decision.鈥�
That assertion will soon be tested in the new case.
