The Two Faces of Janus v. AFSCME

Progressive podcaster Jonathan Tasini says it’s a disaster for unions and working Americans; libertarian legal scholar Eugene Volokh says it’s a bad decision, but won’t change much.
The two-faced Roman god Janus was said to look over the beginning and end of conflicts — one face looked rearward, to the past, while the other looked ahead to the future. With the end of the Supreme Court’s latest session and looming end to moderate Justice Anthony Kennedy’s career, we may be witnessing the beginning of a new era of jurisprudence.

Two years ago, the court decided not to hear the case of Friedrichs v. California Teachers Association, suspending the conflict between public sector unions and their opponents in the “right work” camp. Rebecca Friedrichs was a school teacher who resented paying dues, or even the less substantial non-member “agency fees” to her union. As a major political faction, public sector unions often push legislation in the interest of their members, such as increased funding for public school teachers’ salaries. Friedrichs, however, was not a typical union member. A rare anti-teacher’s union teacher, Friedrichs was recruited as an ideal plaintiff to go to court on behalf of the entire “right to work” movement — largely funded by conservative and libertarian interest groups — to argue that her free speech rights were being violated by the requirement to contribute financially to her union.

Many thought that the Friedrichs case was doomed when Justice Scalia suddenly passed away in 2016, until Trump’s election ushered in Neil Gorsuch’s nomination. The issue of public sector union dues returned to the docket in the case of Janus v. AFSCME. While the details were different, the essentials of the case was the same: do forced dues to a union constitute a violation of the First Amendment, as an instance of “compelled speech?”

A Precedent Overturned
Janus, a child protection specialist, contested the fees his union required him to pay. Since unions often function as a wing of the Democratic party, this seems like a reasonable complaint for public sector workers who broadly oppose the Democrats’ agenda. Indeed the court had found in a previous case, Abood v. Detroit Board of Education (1970), which determined that dues collected from non-members were constitutional as long as they were only used for the union’s purposes of collective bargaining — separated from political activism funded by member dues.

Allowing employees to opt out of union fees entirely, however, creates a “free rider” problem, in which the non-members receive the benefits of the union’s negotiations at the expense of members. Thus, the decision in Janus — in favor of the plaintiff’s right to not pay any fees — deals a hard blow to public sector unions — one of the last organized supporting wings of the Democratic Party.

To understand why the case was so charged, one needs to understand the shifting political landscape — specifically, the shrinking power of unions as a check on business interests. Certain subgroups of the GOP have made it their goal to “defund and defang” public sector unions — the last bastion of organized labor — so that a free market agenda can advance with less opposition. As union membership has declined, we have seen a nearly inverted relationship with the share of income going to the top 10%. Whether the relationship is causal is hard to say, but the graphical evidence is compelling.

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Jonathan Tasini, host of the progressive “Working Life” podcast, sees this outcome as the result of a highly effective coalition of right-wing interest groups — including the Koch Foundation and the Uihlein Foundation — and the network of think tanks and organizations they support. Tasini links the decline in union influence over politics with the rise in inequality, and expects the Janus decision to further erode the fabric of working-class America.

However, it is not only progressives using partisan arguments for unions who are arguing against the 5–4 majority in Janus.

Was the Court Wrong?
Eugene Volokh, a noted libertarian legal scholar and lead blogger at Reason.com’s The Volokh Conspiracy, co-authored an amicus (or “friend of the court”) brief in support of a government union’s constitutional right to levy fees.In her dissent, Justice Kagan quotes Volokh’s brief, which offers “many examples to show that the First Amendment ‘simply do[es] not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of.’”

For example, when the government taxes, it often spends the money on campaigns to promote the ideology behind a given program. In a simpler case, government grants often fund causes and forms of expression that many taxpayers do not value. Kagan and Volokh suggest that we might as well think of the fee as a tax on government workers to pay for the collective bargaining that they must undertake with the union to determine fair pay and benefits.

This ultimately led Volokh to conclude, in the wake of the decision, that the new precedent won’t change much. After all, the government can just change its method of levying the fee to a tax — leaving union revenues unchanged.

Nonetheless, the Janus decision does seem to tilt the balance a bit further away from unions, which is why many libertarians are celebrating.

Bob has covered this topic several times in the past, including (most recently) his interview with Rebecca Friedrichs and her attorney. Now you can hear the other side of the debate from Jonathan Tasini.