The Radical Roots of Janus

Source: Joseph A. McCartin, American Prospect, February 27, 2018

The attorney whose arguments were heard in the Supreme Court yesterday—a decade after his death—actually wanted all unions outlawed. …. As the Supreme Court heard the pivotal union case, Janus v. AFSCME, on Monday, an unacknowledged presence haunted its chambers: that of Sylvester Petro, who conceived the argument on which the case turns. Although he died in 2007, this ideologically driven, anti-union law professor originated the legal strategy behind this case. His radical vision illuminates Janus’s profound implications. 

Petro was the first to contend that public-sector collective bargaining was simply a form of politics, and that therefore, any effort to require government workers to pay “agency fees” to a union in return for its representational work amounted to compelled political speech that infringed on their First Amendment rights—the argument that Illinois public employee Mark Janus embraced in this case. Petro tried unsuccessfully to get the court to endorse that argument in the 1977 case of Abood v. Detroit Board of Education, the precedent Janus seeks to overturn.

Yet despite Petro’s seminal role in shaping their argument, Janus and his supporters seem intent on erasing any memory of Petro. His name is not mentioned among the voluminous citations of some two-dozen briefs supporting Janus. 

Petro’s invisibility is intentional. Those who seek to advance his vision today know that any reference to his radically anti-union views would expose their equally radical aims. ….