Supreme Court deals sharp defeat to public employee unions, banning mandatory fees

Illinois Gov. Bruce Rauner stands outside the Supreme Court in Washington in February. Rauner launched the original case that resulted in the court's ruling on so-called fair share union fees.
(Jacquelyn Martin / Associated Press)

The Supreme Court dealt labor unions a sharp defeat Wednesday, ruling that teachers, police officers and other public employees cannot be forced to pay dues or fees to support their unions.

By a 5-4 vote, the justices overturned a 41-year-old precedent and ruled that the 1st Amendment protects these employees from being required to support a private group whose views may differ from theirs.

The decision, in Janus vs. AFSCME, strikes down laws in California, New York and 20 other mostly Democratic-leaning states that authorize unions to negotiate contracts that require all employees to pay a so-called fair share fee to cover the cost of collective bargaining.


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In 1977, when public sector unions were getting established, the high court said teachers and other public employees may not be forced to pay full union dues if some of the money went for political contributions. But the justices upheld the lesser fair share fees on the theory that all of the employees benefited from a union contract and its grievance procedures.

But today’s more conservative court disagreed and said employees have a right not to give any support to a union. These payments were described as a form of “compelled speech,” which violates the 1st Amendment.

“We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,” wrote Justice Samuel A. Alito Jr. for the majority.

He said powerful public sector unions have led to huge budget problems in Illinois and other states as well as costly public employees pensions that are badly underfunded. He also rejected the notion that employees who do not support the union are “free riders.” Rather, they are “captives” on a trip they do not want to take, Alito said.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch agreed. All four liberal justices dissented.


In dissent, Justice Elena Kagan accused her colleagues on the right of conservative activism. “The majority overthrows a decision entrenched in both this nation’s law and its economic life,” she said. “And it does so by weaponizing the 1st Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor agreed.

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The anti-union National Right to Work Foundation, which funded the challenge, predicted the ruling would free more than 5 million public employees from supporting their unions.

“Today’s decision is a landmark victory for rights of public-sector employees coast to coast that will free millions of teachers, police officers, firefighters and other public employees from mandatory union payments,” said Mark Mix, president of the foundation.

“So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs,” said Mark Janus, the lead plaintiff and a child support worker in Springfield, Ill. “The right to say ‘no’ to a union is just as important as the right to say ‘yes.’ ”

For the unions, which traditionally support Democrats, the ruling will mean an immediate loss of some funding and a gradual erosion in their membership. Union officials fear that an unknown number of employees will quit paying dues if doing so is entirely optional. The ruling is likely to have a political impact in many states where these unions have been strong supporters of the Democratic Party.


Leaders of the four largest public sector unions — the NEA, AFT, SEIU and AFSCME — condemned the ruling but predicted it will be a “rallying point” for workers and unions.

“It is shameful that the billionaire CEOs and corporate special interests behind this case have succeeded in manipulating the highest court in the land to do their bidding,” they said. “This case was nothing more than a blatant political attack to further rig our economy and democracy against everyday Americans in favor of the wealthy and powerful.”

The ruling split the court along ideological and partisan lines. The five justices who formed the majority were all Republican appointees. The four dissenters were appointed by Democratic presidents.

The outcome comes as no surprise to the unions or their lawyers. Three years ago, the justices had before them an identical free-speech challenge to union fees brought by Rebecca Friedrichs, a California teacher. The five conservative justices appeared set to strike down the union fees, but Justice Antonin Scalia died suddenly in February 2016. A month later, the court announced it was divided 4-4 and could not issue a ruling.

President Trump’s victory allowed him to replace Scalia with Gorsuch who, as expected, cast the fifth vote for the conservatives.

The current case was launched by Illinois Gov. Bruce Rauner shortly after he took office. He sued to stop the forced collection of union fees, but a federal judge in Chicago said he had no standing to sue because he did not have to pay the fees. So Janus, the state employee from Springfield, stepped forward as a plaintiff. He said he did not want to pay $45 a month to support the American Federation of State, County and Municipal Employees.


As expected, he lost in the 7th Circuit Court in Chicago because such union fees were legal under the court’s previous precedent, now overturned.

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9:05 a.m.: This article was updated with reaction from unions and anti-union groups.

8:20 a.m.: This article was updated with additional quotes from the ruling and the dissent.

7:40 a.m.: This article was updated with a quote from the ruling.

This article was originally published at 7 a.m.