AuthorChristian, Daniel


While judicial evolution is a natural part of the common law process, (1) Janus v. AFSCME (2) represents an aberration of the natural process. This natural process has been replaced with an artificially expedited and partisan process, by which long-held principles in American jurisprudence are overturned in a matter of a few years. This departure threatens the stability of American law. politicizes the Supreme Court, and empowers the Court to act outside of its regular constitutional boundaries.

While conservatives view Janus's holding as a victory, (1)' the conservative movement to undermine Abood v. Detroit Board of Education (4) acted against the longstanding tradition of stare decisis. (5)' Thus the Janus victory may be short lived, as there will likely come a day when the liberals hold a Court majority (6) and will be able to deploy the strategies of the Janus Court and chip away at landmark cases favored by conservatives, eventually overturning them.

Regardless of whether one agrees with the constitutional principle announced in Janus, the process by which it the Court reached its decision should alarm adherents of a sound judicial system. "[T]he law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it." (7) If the swift and targeted approach implemented during the process of Janus becomes commonplace, it would change the landscape of the judiciary. Such a seismic shift in judicial norms would shock the American system and jurisprudence and reduce the common law to a moving target for political machinations.

The effort to end agency shop fees, (8) although accelerated by judicial standards, did not happen overnight as predecessor cases laid the groundwork on which the Court relied when justifying its decision in Janus. (9) To fully understand the complexity of this undermining of the judicial process, we must look to the original standard as announced in Abood and how subsequent cases chipped away at it.

This Note first examines the pre-Janus framework and its compromise to the agency shop question. Doing so will aid in the understanding of the complex and deeply rooted system that was cast aside by Janus, as well as the compromises of Abood and the necessity of such compromises. From there, the Note discusses how the pre-Janus framework was changed as unions came to be labeled as inherently political entities, unable to exist absent an agenda. Next, this Note discusses how the current composition of the Supreme Court has influenced a jurisprudential shift in the way that the Court has addressed issues relating to public-sector labor unions. This shift is best explained through the targeted and methodical process of undermining Abood decision by decision.

Understanding the factual nuances of these cases will allow for a deeper understanding of the shift in judicial sentiment towards public unions, from punishment for misbehavior to contempt and utter eradication. Tracing the cases leading up to Janus will lead to the final question this Note will addresses: Why does the conduct of the Court matter? The broader implications of an activist Court would catastrophically disrupt a system built on the principles of stare decisis. Turning a blind eye to this now will only empower future generations of jurists-with whom many will disagree-to bind the American populous with judge-made law, absent any actions by Congress or the President.


    Abood v. Detroit Board of Education represented a compromise of ideals: the need to keep the government out of the business of compelling political speech and the need to promote effective labor peace. (10) The Michigan statute at issue in Abood made union membership a "condition of employment." (11) In adopting the standards of private-sector closed shops, (12) Abood extended the principles of exclusive bargaining to public workers and their representatives. (13) The extension of exclusive representation "carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones." (14)

    The Court split the proverbial baby, creating two classes of workers-members and nonmembers (feepayers)-while maintaining a union's right to political speech. (15) To preserve this right, however, "the Constitution requires only that such expenditures [relating to political activities] be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment." (16) So this compromise then seems to reach the best of both worlds: unions may deduct dues germane to the process of collective bargaining and contract administration, while nonmembers are required to pay only for the services from which they reap a reward. (17) This unanimous decision stood for over forty years. (18) The dawning of a new millennium came with a new understanding of fees as compelled political speech. (19)

    "[T]he political debate over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood did not fully appreciate." (20) Abood did not see public servants as political objects belonging to a party; instead, it focused solely on market forces, which would unify apolitical bargaining power. (21) Unfortunately, in today's political climate, the country can no longer agree that fighting for the best interests of a bargaining unit, in even its most basic form, is not inherently political. (22) "Moreover, according to the Court's dicta in Harris v. Quinn,' (2S) even the most quintessentially traditional collective bargaining subject-wages-can reach important political issues in the public sector, particularly in an age of ballooning state payrolls and unbalanced budgets." (24) In other words, the Court would have one believe that a union using agency and member fees to lobby an employer for a pay raise does not do so for the benefit of the employees, but rather to advance some political agenda in an effort to further indebt the state. This characterization of agency fees as unavoidably political is at best cynical and at worst warped.


    1. Alito's Influence

      It would seem unfair to discuss public-sector unions without discussing the author of the three majority decisions undermining and then overturning Abood. (25) Most shocking is the manner in which "a relatively junior Justice" was able to set the agenda for the Court. (26) The appointment of Justice Alito tipped the scale, moving the Court to the right and creating the strong conservative majority needed to overturn Abood. (27) However, one should not overturn a forty-year-old precedent simply because one does not agree with the political arguments. Nevertheless, Justice Alito embarked on what Justice Kagan dubbed the Court's "6-year campaign to reverse Abood." (28)

      The overturning of Abood would become a crusade to Justice Alito, who authored all three majority opinions, each building upon the last, which overturned Abood. The message of these decisions was simple: Abood was wrongly decided. (29) Justice Alito, despite only being on the Court for six years at the time of his first anti-.4oood opinion, (30) was able to act as the architect of a targeted takedown of a long-settled precedent.

    2. Knox v. SEIU

      Justice Alito's first attempt to crack the foundation of compulsory agency shop fees came in 2012 with Knox v. SEIU, Local 1000P This represented the perfect first case for Alitor with Aboods intended protections against compelled political speech, the Knox issue cut directly against Abood's intent. (32) Knox involved a California union's decision to levy a special fee increase in order to defeat two special elections propositions called for by then-Governor Arnold Schwarzenegger. (33) These propositions would have required unions to obtain an employee's affirmative consent before raising dues for political purposes and would have given the governor, in some circumstances, the ability to limit appropriations to public-employee benefits. (34) Naturally, such an existential threat to California state unions elicited a strong response, but the tactics of the Service Employees International Union (SEIU), Local 1000, would become too drastic for even some moderate and liberal justices. (35)

      SEIU distributed its annual Hudson notice, (36) which set the levels at which dues would be deducted and established what percentage of dues would be chargeable expenses related to the day-to-day apolitical operations of the union. (37) The annual charge was estimated at 56.35% and established fee caps-fee payers (nonmembers) would have thirty days to object to the full amount and instead have only the 56.35% deducted, creating an opt-out system. (38) This notice also included a provision stating that "the agency fee was subject to increase at any time without further notice." (39) After the notice had been sent out, but before the end of the thirty-day period, Governor Schwarzenegger announced the special elections. (40) Once the thirty-day window closed, SEIU announced a temporary twentyfive percent dues increase and the elimination of dues caps. (41) SEIU's action was publicly labeled and advertised as the "Emergency Temporary Assessment to Build a Political Fight-Back Fund." (42) This money was then used for a variety of political speech and activities, such as mailers, television and radio advertising, voter registrations, and education. (43)

      Abood had articulated a clear and simple message: "We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other...

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