The Supreme Court ruled 5-4 last week that it is unconstitutional for public-employee unions to collect fair-share fees — fees charged to non-members to cover the cost of representing them in collective bargaining and other matters. The decision in Janus v. AFSCME was expected but bizarre.
The court’s majority, after all, are supposed to be originalists who insist the Constitution means what the framers wrote over 200 years ago. Conservative legal critics are likely to mock the idea, expressed by the late liberal justice William O. Douglas, that “emanations” from the text of the Constitution form a “penumbra” in which other rights – such as a right to privacy – can be found.
Yet the five conservative justices looked at the First Amendment, with its five freedoms – of speech, religion, the press, assembly and to petition of the government — and found a sixth in its penumbra:
The freedom to free-ride on union members who willingly pay dues for what they get.
The court’s decision to reverse its 1977 ruling in Abood v. Detroit Board of Education, which allowed fair-share fees, was strange by not surprising. As Justice Elena Kagan suggested in her powerful dissent, this wasn’t about applying consistent legal principles. It was about ideology and power:
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. … Today, that healthy — that democratic — debate ends. The majority has adjudged who should prevail.
The decision is sure to hurt membership and funding for teachers’ unions and other public-employee unions in the 22 states that allowed fair-share fees. But that doesn’t mean the unions are finished, or that public schools will be left without champions.
In Indiana, which abolished fair-share fees for teachers in 1995, the Indiana State Teachers Association has stayed effective by focusing on what teachers can do together to advocate for their students, their schools and themselves, the union’s vice president told me. In Wisconsin, where Gov. Scott Walker waged a largely effective war against teachers’ unions, parents, students and teachers have stepped up to fight for public schools and against school privatization, Jennifer Berkshire writes.
Fair-share fees are dead. In the words of Joe Hill, “Don’t mourn, organize.”