Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II)

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II)

Legal Sidebari

Public Sector Union Dues: Grappling with
Fixed Stars and Stare Decisis (Part II)
Updated February 26, 2018
UPDATE: On June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, Council 31. A
Legal Sidebar on the Supreme Court's decision is available at this link.
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.
The Janus Case. Janus is brought by an Illinois state employee, who argues that the Court should wield
its prior critiques of Abood (discussed in Part I of this Sidebar) to strike the final blow to public sector
agency fees, which Janus views as “the largest regime of compelled speech in the nation.” In response,
the union representing Janus’s bargaining unit—the American Federation of State, County, and Municipal
Employees, Council 31 (AFSCME)—urges the Court to stay its hand. In addition to challenging whether
the case is properly before the Court, AFSCME argues that Abood established a First Amendment
principle that has informed the Court’s analysis of every First Amendment “obligatory cost-sharing”
challenge thereafter. The Illinois Attorney General also asks the Court to uphold Abood, particularly in
light of the doctrine of stare decisis—in the Court’s words, “the idea that today’s Court should stand by
yesterday’s decisions.”
As background, the Court generally views adherence to precedent as the “preferred course” because it
“promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Nonetheless, the Court has recognized that certain considerations, including the Court’s role in upholding
the Constitution, the soundness of the reasoning of prior decisions, the workability of governing case law,
and the extent of the reliance interests involved may justify overruling a prior decision.
A New Voice on the Court. As noted above, Justice Gorsuch is likely to be a key voice in deciding the
Janus case on what otherwise might be an equally divided Court. On the role of stare decisis, Justice
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Gorsuch, as a lower court judge, wrote that the “the most elemental dictate of legal reasoning always has
been and remains: like cases should be treated alike,” and that “judges do not necessarily profess a
conviction that every precedent is rightly decided, but they must and do profess a conviction that a justice
system that failed to attach power to precedent . . . would hardly be of the name.” Nevertheless, at that
time, then-Judge Gorsuch was bound by controlling Supreme Court precedent, and it is unclear precisely
how he would apply stare decisis principles as a Supreme Court Justice. Perhaps the best analog from
Justice Gorsuch’s prior tenure is when he sat en banc (i.e., along with the full circuit), wherein he did
express a willingness to overturn circuit precedent to “correct grave errors . . . when they become
apparent,” even if the “precedents in question happen to be old.”
Whether Justice Gorsuch would view Abood as a “grave error” in the Court’s jurisprudence is not entirely
clear from his First Amendment cases, which simply did not address the issue of compelled union dues. In
the context of government limits on campaign contributions, the newest Associate Justice found common
ground among the parties in the view that political contributions implicate (in the Supreme Court’s
words) a “basic constitutional freedom” derived from the First Amendment’s protections of freedom of
speech and association. But even if Justice Gorsuch regards the inverse as true—that compelled
contributions implicate core First Amendment freedoms—it is not a foregone conclusion that the
Associate Justice will adopt Janus’s view of the case because he has not yet written or otherwise
commented on the specific concerns that justified compelled subsidization in Abood—i.e., the labor peace
and free rider concerns.
Significance of the Decision. Briefing in Janus is ongoing, but to date, nineteen states, eighteen
organizations, and seven individuals have filed or joined amicus briefs in the case, signaling the
significance of the decision to a range of stakeholders. The Janus case also has important implications for
the roughly 6.7 million state and local government employees who are represented by unions, many of
whom reside in states that authorize the assessment of agency fees for non-member, represented
employees. Many opponents of Abood argue that if the decision is allowed to stand, it will continue to
result in an impermissible infringement of employees’ First Amendment rights. Abood supporters argue
that agency fees are necessary for public sector unions to perform as effective bargaining representatives,
and that overruling Abood will lead quickly to free-rider problems, creating tension between dues-paying
and non–dues-paying employees and disrupting the stability of labor relations. Opponents counter that
such threats to union membership and budgets are overstated, citing examples from jurisdictions that do
not allow agency shops. Still, some commentators have posited that partisan motivations lurk behind the
legal and policy debates over agency fees, with left-leaning public sector unions pitted against more
conservative groups backing non-union employees.
In addition to the concerns noted above, Janus raises important considerations for lawmakers and the
judiciary. If the Court upholds Abood, we might expect to see continued litigation in the lower courts over
the permissibility of certain union expenditures and the adequacy of specific union procedures to protect
the rights of objecting employees. There also might be increased pressure on some state legislatures to
ban agency fees altogether. On the other hand, a decision overturning Abood could call into question the
Court’s reasoning in other cases in which the Court applied Abood’s rationale—a concern raised by the
dissent in Harris v. Quinn. For example, the Court has upheld the collection of mandatory state bar dues
for activities germane to regulating the legal profession, as well as assessments charged to California fruit
growers and handlers to cover the costs of generic advertising authorized by Congress.
What’s Next? The Supreme Court likely will elicit more information about the effects of Abood
when it hears arguments (not yet scheduled) in the case, in order to contextualize the speech that
agency fees are said to compel unlawfully and the reliance interests and other stare decisis
considerations that may militate against dismantling Abood’s test.

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Author Information

Victoria L. Killion

Legislative Attorney

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