The Supreme Court long ago described the First Amendment’s protection against compelled speech as a “fixed star in our constitutional constellation.” This Term, the Court may decide whether it has steered too far from that shining precept in the area of public employee union dues (or agency fees) in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Specifically, the Court will consider whether to overrule its 1977 decision in Abood v. Detroit Board of Education, in which the Court announced the basic test for determining the validity of “agency shop” arrangements between a union and a government employer. Agency shop arrangements (sometimes called “fair share” provisions) require employees to pay a fee to the union designated to represent their bargaining unit even if the employees are not members of that union. The Abood Court held that these arrangements do not violate the First Amendment insofar as the union uses the fees for “collective bargaining activities” and not “ideological activities unrelated to collective bargaining.” In its October 2015 Term, the full Court heard oral argument on whether to overrule Abood, but ultimately divided four-to-four on this question following the death of Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of the Court will reaffirm Abood or chart a new course. Part I of this two-part Sidebar provides general background on Abood and the case law leading up to Janus. Part II then discusses the perspectives Justice Gorsuch may bring to Janus and the potential implications of the decision for public sector collective bargaining and compulsory fees more broadly.
Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II)
Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10041, December 4, 2017
As discussed in Part I of this two-part Sidebar, on March 29, 2016, an eight-member Supreme Court divided equally over whether to overrule its 1977 decision in Abood v. Detroit Board of Education and hold that public sector agency fees violate core First Amendment principles (the Court’s “fixed star”). Earlier this Term, the Court agreed to consider the question again in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. Part II of this Sidebar begins with a brief summary of the parties’ arguments in Janus. It then highlights some key statements from the prior decisions of Justice Gorsuch, who is likely to be a critical voice in deciding whether to overturn Abood. The post concludes by exploring the potential implications of the Janus decision.