The Supremes v. Unions: Rulings Expose High Court's Anti-Worker Bias.

AuthorBlum, Bill

Toward the end of the oral argument in a pivotal labor case before the U.S. Supreme Court last February, Justice Sonia Sotomayor made a comment that cut to the heart of the matter.

"You're basically arguing, do away with unions," Sotomayor said.

The case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, concerns the right of public-employee unions to collect fees from nonunion workers. The plaintiff, Mark Janus, is an Illinois state public employee who refuses to join AFSCME, which acts as the bargaining agent for rank-and-file employees in his department, and objects to having "fair-share" fees deducted from his monthly paychecks.

Sotomayor's remark was directed to Janus's attorney William Messenger. It echoed the concerns of progressive activists across the country, who say the case poses an existential threat to public-sector unions, which rely on fair-share fees from nonmembers to defray the costs of collective bargaining and contract administration.

Messenger, a staff lawyer for the National Right to Work Legal Defense Foundation and member of the conservative Federalist Society, hemmed a bit at the justice's bluntness, but he stuck to the central position he had advanced in his argument and briefs: that the case was about the First Amendment. He insisted that Americans have not only an affirmative right to speak but also a passive right not to be compelled to speak. And making nonunion public employees pay fees to a union, he and others contend, amounts to compelled speech.

In late June, the Supreme Court accepted this reasoning and sided with Janus, ruling 5-4 that public-employee unions may not collect fair-share fees. Without these revenues, many unions believe their coffers will dry up, and their membership rolls will shrivel.

In other words, Sotomayor grasped the essence of the issue.

As of the date the decision was handed down, twenty-eight states had adopted right-to-work laws prohibiting fair-share deductions. The remaining twenty-two and the District of Columbia permitted them for some five million state and local government employees. In effect, the decision has turned the country's entire public sector into one giant right-to-work jurisdiction.

The majority opinion in the Janus ruling was written by Justice Samuel Alito, with Trump appointee Neil Gorsuch, who replaced the late Antonin Scalia on the bench last year, siding with the majority. Also in the majority were Chief Justice John Roberts and Justices Clarence Thomas and Anthony Kennedy. All were appointed by Republican Presidents.

Alito concluded that even though mandatory fair-share fees cannot be used for political purposes, they are nonetheless a form of coercion. "It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment," Alito wrote. "Those unconstitutional exactions cannot be allowed to continue indefinitely."


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