Symposium: Four propositions that follow from Janus

James Coppess is the associate general counsel for the American Federation of Labor and Congress of Industrial Organizations, which filed an amicus brief in support of the union in Janus v. AFSCME.

In Abood v. Detroit Board of Education, the Supreme Court in 1977 held that the First Amendment allows public employers to require that their employees pay a service fee to their collective-bargaining representative covering the costs of contract negotiation and enforcement. At the same time, the court also held that the First Amendment does not allow requiring such employees to financially support costs unrelated to collective bargaining. With respect to core collective bargaining over economic terms of employment, the court was unanimous. Even Justice Lewis Powell, who wrote separately, agreed that “the case for requiring all teachers to contribute to the clearly identified costs of collective bargaining” – over matters such as “teachers’ salaries and pension benefits” – “would be strong.”

Over four decades, Abood was treated by the Supreme Court as a foundational First Amendment precedent. This was true not only with respect to the First Amendment rights of public employees, as to which the court issued numerous decisions carefully explicating how the holding of Abood should be applied, but also with respect to an entire line of “compelled-subsidy cases” stretching far beyond the realm of labor relations in which, as Justice Anthony Kennedy put it in 2000 in Board of Regents v. Southworth, “Abood provided the foundation for our later decision[s]” and “the beginning point for our analysis.” In the numerous decisions applying Abood in a wide variety of non-labor contexts, not a single justice expressed the slightest doubt that, as Justice David Souter put it in a 1997 dissent in Glickman v. Wileman Bros. & Elliott, Inc.,  “a proper understanding of Abood is necessary for the disposition of [any] case” involving “compelled contributions.”

The first doubts about Abood were expressed by Justice Samuel Alito in 2012 in Knox v. Service Employees. Two years later, in Harris v. Quinn, his criticism became much more strident. And, finally, at the end of this term, Alito authored the 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees, overruling Abood. As Justice Elena Kagan ably demonstrates in her dissenting opinion, the decision to overrule Abood cannot be defended in terms of First Amendment analysis. Rather, it is nothing more than a political decision that “prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”

There is no point in repeating Kagan’s criticisms of the majority opinion in Janus. However, it might be worth noting several propositions that should follow from it.

First, under the Janus majority opinion, a public employer’s “restrictions on what can be said” by public employees, just like “the compelled subsidization of private speech” at issue there, should be subject to “exacting scrutiny” requiring that the restrictions “serve a compelling state interest that cannot be achieved through means significantly less restrictive.” Previously, the court had held in 1983 in Connick v. Myers that the “limited First Amendment interest involved” in workplace-related speech by public employees permitted any restriction on speech that the employer “reasonably believed” might have utility.

Second, although the matter has not been in any doubt since 1984’s Minnesota Board for Community Colleges v. Knight, Janus confirms that the First Amendment is not violated by collective bargaining through an exclusive employee representative. Many pages of the Janus opinion are spent in an attempt to show it is “simply not true” that “designation of a union as the exclusive representative of all employees in a unit and the exaction of agency fees are inextricably linked.” That would hardly have been relevant if the designation itself were unconstitutional.

Third, the Janus opinion severely criticizes Abood’s “fail[ure] to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees” than arises from “Congress’s ‘bare authorization’ of private-sector union shops under the Railway Labor Act.” In this regard, Janus says it is “questionable” whether “any First Amendment issue could have properly arisen” from “Congress’s enactment of a provision allowing, but not requiring, private parties to enter into union-shop arrangements.” This calls into question myriad lower-court and National Labor Relations Board decisions drawing on First Amendment precedents in defining the statutory duty of unions with respect to charging mandatory service fees under private sector agreements.

Finally, the Janus majority opinion indicates that requiring lawyers to pay bar association fees as a condition of practicing law is unconstitutional. As Kagan notes repeatedly in her dissent, without any denial by Alito, the court had relied upon Abood to “bless[] the constitutionality” of “mandatory fees imposed on state bar members.” Indeed, the court’s lead decision establishing the constitutionality of mandatory bar fees, 1961’s Lathrop v. Donohue, treats the issue as having been settled in 1956 by Railway Employes’ Dept. v. Hanson, the same Railway Labor Act precedent that Janus criticizes Abood for following. If Abood “went wrong” relying on Hanson, then so did Lathrop. And it follows that the Supreme Court compounded its error in 1990 with Keller v. State Bar of California by relying entirely on Abood in setting the constitutional limits on mandatory bar fees.