The Impact of Janus

Joseph Slater, one of our blog’s oldest friends, has a good summary of Janus, in case you aren’t quite clear of precisely what it ruled yet.

Janus overturned Abood entirely. The majority opinion by Justice Alito, joined by Justices Thomas, Gorsuch, Kennedy, and Chief Justice Roberts, argued that Abood’s balancing was incorrect because it (i) undervalued plaintiffs’ First Amendment interests by using insufficiently strict scrutiny; and (ii) overvalued the state’s interest in union security clauses. Regarding the former, the majority rejected a comparison to the line of cases (Connick, Pickering, and Garcetti) in which the Court allowed the government significant discretion in limiting the free speech rights of individual public employees because of the government’s broad rights in its role as an employer. These cases include the rule that normal workplace grievances are not a matter of “public concern” and therefore cannot implicate the First Amendment. The Janus majority reasoned that the collective power of unions transformed speech about workplace matters normally outside the protection of the First Amendment into matters of public concern. It gave as an example the impact of public employees’ pay and benefits on public budgets, although it did not acknowledge that pension benefit levels (a main example) are illegal subjects of bargaining under almost all public-sector labor laws. Fundamentally, the majority essentially held that everything a public-sector union does is inherently a matter of public concern.

The majority also argued that Abood exaggerated the government’s interest in “labor peace” and collective bargaining. The majority stated that in “right to work” jurisdictions, including but not limited to the federal sector, unions represent their members in bargaining effectively.

The majority rejected the “free rider” argument, noting that unions in “right to work” jurisdictions still seek to become exclusive representatives, and thus they must see a benefit for themselves in that status. Intriguingly, the majority implied that states could alter DFR rules to allow unions to charge employees they represent who do not pay dues for the costs of arbitrations. Still, the majority warned that major distinctions between union members and those who do not pay dues (e.g., in contract negotiations) were likely unconstitutional.

The majority felt unconstrained by stare decisis because of the reasons above and because, it argued, there is now more data about public-sector collective bargaining than there was at the time of Abood, when the first public-sector labor law was fifteen years old. This was an interesting assertion to make in a case with no factual record below.

Interesting thoguhts about the impact as well:

Janus will significantly diminish union resources. Estimates of membership loss range from 8.5% -30%, with public safety and urban union members less likely to resign, and rural and lower-paid employees most likely. This will hurt the ability of unions to represent workers. While Janus only applies to public employees, because they constitute nearly half of all U.S. union members, it will hurt the entire labor movement. It will also hurt the Democratic Party. Where “right to work” rules have been implemented, the share of Democratic votes drops 3.5%. Professor Joseph McCartin argues the decision will damage democracy itself.

Blue states may adjust some DFR rules. New York recently amended its statute to allow union contracts to require those who do not pay dues to pay for their representation at arbitrations. This law and a California law require employers to give unions additional access to employees to make their pitch. The New York Times, citing Professor Benjamin Sachs, argues that public employers should be required to reimburse unions for bargaining costs. Hawaii HB923 would do that. Unions promise to redouble efforts at internal organizing. But this decision will do lasting damage.

Which of course is the goal of the majority on the Court, based on the solid constitutional principle that unions suck.