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The Supreme Court weakens unions with a bogus ‘free speech’ ruling

The Supreme Court weakens unions with a bogus ‘free speech’ ruling
The Supreme Court. (Ricky Carioti / Washington Post)

In ruling that public employees have a constitutional right not to pay fees to unions that represent their interests at the bargaining table, the Supreme Court weakened organized labor and threw labor-management relations across the country into confusion. But Wednesday’s 5-4 decision in the case of Janus vs. American Federation of State, County and Municipal Employees also dealt a serious blow to the court’s credibility.

Not only did the court overrule a 41-year-old precedent, administering what Chief Justice John G. Roberts Jr. once described as “a jolt to the legal system” without good cause, it did so by relying on a far-fetched interpretation of the 1st Amendment.

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In 22 states, including California, government employees who choose not to join a union at their workplace can be required to pay so-called agency fees to defray the cost of the collective bargaining that sets the pay, hours and benefits of all covered workers, in or out of the union. In 1977, the Supreme Court upheld this practice, holding that any burden on free-speech rights was justified by the state’s interest in labor peace and preventing “free riders.”

But in the same case, Abood vs. Detroit Board of Education, the court said that fees paid by nonmembers couldn’t be used against their will for political activities not germane to collective bargaining.

This common-sense distinction was swept aside by the court Wednesday in a majority opinion by Justice Samuel A. Alito Jr. Central to Alito’s argument is the idea that fees assessed for collective bargaining are actually subsidizing “private speech on matters of substantial public concern” because public-employee contracts have an effect on budgets and taxation.

This is tortured logic. And even if these fees could be considered a form of speech, the court long has recognized that government entities have what Justice Elena Kagan in her dissent called “substantial latitude to regulate their employees’ speech — especially about terms of employment — in the interest of operating their workplaces effectively.”

Regardless of whether Abood was wrongly decided, it is a long-established precedent of the court. And given the disruption that can ensue when such precedents are overturned, they shouldn’t be jettisoned without a compelling reason. Alito insisted that the “poorly reasoned” decision has led to practical problems and abuse and has been undermined by more recent decisions. But Kagan persuasively countered that Abood “is deeply entrenched, in both the law and the real world.”

Freedom of speech is a cherished right that this page has consistently and vigorously defended, and the court often has handed down decisions wisely protecting that right from censorship or suppression. This is not one of them. As Kagan said at the end of her dissent: “The 1st Amendment was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”

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