Series Introduction: Beginning with overturning Roe v. Wade, the ultra right-wing Supreme Court continues attacking hard-won and elementary democratic rights in the United States, from affirmative action to the Indian Child Welfare Act. The following article is the fifth in our series “Crimes of the Supreme Court,” which demonstrates the fundamentally reactionary and anti-democratic nature of the Supreme Court by examining key decisions in the Court’s history. We explain their historical and political context, the legal concepts and frameworks used to justify their decisions, and lay out their implications for later cases and/or broader struggles. This entry focuses on the 2018 Supreme Court ruling in Janus v. AFSCME, declaring that the requiring all public sector workers with a collective bargaining agreement in place to pay “agency fees” or “fair share” dues, even though all workers benefit from negotiated contracts. We discuss the immediate origins and contexts of Janus before turning to the specifics of the case and ruling. We link the ruling to a longer history of reactionary legislation in response to growing working-class power, as well as discussing the 1977 Court ruling Janus overturned, before discussing how labor continues to resist this latest attack.
Introduction
Today’s labor movement stands on the shoulders of a long tradition of radical working-class militancy. When organized, any sector of our class has the ability to struggle for and win remarkable gains. As with every reform and advance under capitalism, however, the capitalists immediately and permanently attack our victories. One major obstacle the labor movement faces today is the Supreme Court’s 2018 ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31, known as Janus v. AFSCME.
Despite the consequences of this serious attack, the popularity of unions is, in general, surging. In fact, 71 percent of people in the U.S. approve of unions, a higher number since 1965 [1]. In a time of widespread poverty and suffering, we have and continue to win major concessions and raise class consciousness. For one recent example, 48,000 University of California graduate and undergraduate workers represented by three UAW locals won unprecedented concessions across the state system in a 40-day strike during December 2022 [2].
This article focuses on a recent turning-point in the Supreme Court’s attack on the people, Janus v. AFSCME, where the Court overturned its own precedent established in 1977. The argument concerned the ability of public sector unions to collect “fair share” dues, or dues from workers who aren’t members even though they are still protected and represented by the union. The Court held this requirement violated the First Amendment rights to “free speech” and “free association.”
Corporate power, not worker opposition: The immediate origins and context of “Janus v. AFSCME”
The anti-labor ruling in Janus v. AFSCME was the most recent assault on organized labor since the so-called Right to Work laws. The ruling in Janus v. AFSCME built on the same ruling-class strategy and deceits developed in particular with the 1947 Taft-Hartley Act [3]. Yet the case has more immediate origins in the state of Illinois.
The plaintiff in the case, Mark Janus, was a state employee in Illinois working for the Department of Healthcare and Family Services. Anti-labor groups recruited Janus to file a suit claiming the requirement to pay his fair share dues to his union—The American Federation of State, County and Municipal Employees Council (AFSCME)—infringed on his “freedom of speech. Agency fees, or fair share fees, are dues all non-union members at unionized workplaces pay to cover the costs of activities that all workers, regardless of union status, benefit from, like collective bargaining and grievance representation.
Mark Janus, at the time the court ruled on his case, was 65-years old and making $71,000 working in child support services, a salary made possible by his union [4]. While the Court heard and ruled on the case in 2018, the immediate origins go back a few years earlier to a decisive gubernatorial election.
The Governor of Illinois at the time, vulture capitalist Bruce Rauner, foregrounded an explicitly anti-worker agenda during his 2014 election campaign. He earned his seat at the political table through his position as Chairman of Chicago-based private equity firm GTCR (the “R” standing for “Rauner”). Interestingly, GTCR’s biggest clients were state entities, including the Illinois State Board of Investment, the Illinois State Teachers Retirement Fund, and the Chicago Teachers Pension Fund [5]. He “earned” his wealth by the same unions he viciously attacked during and after his campaign. His 2015 tax returns show Rauner and his wife claimed over $188 million in taxable state income [6].
Rauner’s governorship primed the pumps for the 2018 Janus case. On February 09, 2015, immediately after taking office, Rauner issued Executive Order 2015-13 that prohibited all state agencies “from enforcing such Fair Share Contract Provisions.” The line between this and the Janus case is abundantly clear in the title of the order: “Executive Order Respecting State Employees’ Freedom of Speech” [7].
He then filed Rauner v. AFSCME in Federal Court, but was denied a hearing because he clearly didn’t represent the workers for whom he was “advocating.” Rauner was at the Supreme Court when they heard oral arguments in Janus v. AFSCME on February 26, 2018. According to an official press release, he told the news agencies there. “I took action to protect the free speech and free association rights of government employees who are forced to pay union dues and fund political causes they don’t agree with… I am proud of what we started three years ago,” he said. The same press release announcing his presence showed no shame in conveying the strategy he pursued after Rauner v. AFSCME: “When a federal judge ruled that, as governor, Rauner didn’t have standing to represent workers in the suit, Mark Janus, an employee of the Illinois Department of Healthcare and Family Services stepped in” [8].
The Supreme Court ruled in favor of Janus four months later, on June 27, 2018. Within a month, Mark Janus demonstrated the case was never about his “free speech” rights. Having won the “right” to benefit from his union without providing anything in return, he announced on July 20 that he was starting as a Senior Fellow working for the right-wing Illinois Policy Institute, the same think-tank that, together with its affiliated Liberty Justice Center and others, financed the lawsuit and provided the legal resources it required [9]. During his announcement, he essentially outed the anti-labor groups that recruited him: “I’ve respected the work of the Illinois Policy Institute and the Liberty Justice Center since first connecting with them in 2015… As I’ve worked with them more closely over the years, I’ve come to admire both the staff and the mission of the organizations” [10].
Janus still works as a Senior Fellow for both the Illinois Policy Institute and its Liberty Justice Center where, according to the Institute’s website, “he serves as an advocate and spokesperson for workers’ rights” [11].
The arguments and details of “Janus v. AFSCME”
That the Supreme Court would even entertain such an absurd argument that positions fair share fees as a violation of the first amendment, let alone rule in its favor on four months later, evidences that the institution is, in essence, the ultimate weapon the U.S. ruling class has to suppress the interests of the overwhelmingly working and oppressed people over which it rules.
The majority opinion, delivered by Samuel Alito, opens without hesitation:
“Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. 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” [12].
The Court’s decision overturned their 1977 precedent in Abood v. Detroit Board of Education (discussed below) that affirmed public unions’ right to collect fair share dues. Alito presents a list of reasons why Abood differs from the present case and what ultimately justifies their decision: “because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed” [13].
Generally, the Court honors their previous decisions, a doctrine called stare decisis, or “let it stand.” A Congressional Research Service survey reported that, as of 2018, the Court overturned its own precedent a total of 141 times, first doing so in 1851 [14]. To justify it in this case, the Court asserts their Abood decision “was an anomaly in our First Amendment jurisprudence” [15]. Later on, he argues that the case was wrong from the jump because of its “unwarranted” over-reliance on two former cases, on the basis of which it “judged the constitutionality of public-sector agency fees under a deferential standard that finds no support in our free speech cases” [16].
Alito also cites the 1963 ruling in Pickerings v. Board of Education to further justify the ruling. In that case, the court affirmed the first amendment rights of the plaintiff–a teacher who was dismissed for writing public articles critiquing his school board and superintendent–were indeed violated [17]. That case acknowledged that the state as an employer holds different expectations for public speech by its employees than citizens, which Alito says is in accordance with their Janus decision. “We simply draw the line,” he says, “at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views” [18].
Prior cases established that unions could only use fair share dues to pay for core activities rather than political lobbying. In Janus, AFSCME provided a breakdown of their financial allocations. Alito dismisses this by rhetorically asking “how could any nonmember determine whether these numbers are even close to the mark” without engaging in a costly legal and accounting process, something, “would be laborious and difficult task.” AFSCME replied that the Union pays all arbitration costs, but Alito found this “farfetched” [19].
He acknowledges the ruling will “cause unions to experience unpleasant transition costs in the short term” but claims that the “considerable windfall that unions have received under Abood for the past 41 years… is hard to estimate” but is apparently “billions of dollars” [20]. In summation, then, this is “a clear violation of the First Amendment and cannot continue… Abood was wrongly decided and is now overruled” [21].
The major victory for the ultra-rich opened the door for a new round of anti-union propaganda campaigns by the same foundations and conservative think tanks that try to place the blame for stagnating wages and shrinking benefits on unions, not bosses. Their plan was to financially deplete union resources and decrease union membership, thereby decreasing their power.
The Taft-Hartley Act accelerates attacks on labor
Before turning to the Abood case, it’s important to situate Janus and related decisions relative to the 1947 Taft-Hartley Act and some of the economic and political context in which both the case and the Act were passed [22].
Congress passed the Taft-Hartley Act, overriding a presidential veto, just after the end of World War II, as the U.S. regrouped the defeated imperialist powers under its umbrella by uniting them through the struggle against socialism and workers’ power.
The technological revolutions in the means of production in the late 19th and early 20th centuries heightened the contradictions of capital, widening the gulf between capital and labor enormously. The industrial production that ramped up in the early 1900s ultimately contributed to crises of overproduction. As the Great Depression set in, marked by the 1929 collapse of the stock market, capital left entire cities and towns barren and, within four years, around 30 percent of people were unemployed.
Despite the incredible obstacles facing the workers’ struggle, the masses were increasingly open to radical or revolutionary ideas. The popularity of communism increased rapidly. The Workers from all sectors of production–from the factories and fields to the art and entertainment industries–joined the Communist Party, which grew to around 100,000 members by 1945. Along with the CP, other radical groupings and revolutionary parties played a leading role in a variety of struggles, especially the labor movement.
Three massive strikes in Minneapolis, Toledo, and San Francisco in 1934 signaled a new level of class consciousness and worker militancy and pushed the Roosevelt administration to pass the 1935 Wagner Act legalizing unions. [23]. Wages rose and the communist and socialist-led labor movement made substantial efforts to unite workers across racial lines, exemplified by the concerted efforts of the radicals in the CIO to break down racist barriers in unions [24].
Despite signing “no-strike” pledges during World War II, workers carried out hundreds upon hundreds of them. Wages were frozen at 1941 levels but inflation was not, and corporate profits increased by 250 percent. Between the end of WWII in 1945 and 1947, capital intensified its attacks as worker militancy. The end of the war also ended the US-Soviet alliance, and anti-communist witch hunts intensified, with unions smeared as “un-American traitors.” The government outlawed boycotts, strikes, and, in 1947, passed the Taft-Hartley Act.
Taft-Hartley hit labor hard, outlawing closed shops (agreements requiring employers to only hire union members), outlawing secondary boycotts, outlawing “political strikes,” wildcat strikes, solidarity strikes, and jurisdictional strikes. It permitted the executive branch to seek strikebreaking injunctions from courts and required union leaders to sign anti-communist oaths. The Supreme Court upheld the requirement of union officers to sign anti-communist oaths in American Communications Assn v. Douds, a decision never explicitly overturned [25].
The Act authorized states to pass “right to work” laws, which don’t guarantee a right to work but rather the right to worse work and less pay. The Act prevents unions from collecting dues from all members they represent by banning closed-shops. Right to work laws make it much harder for unions because of the “free-rider problem” it creates, as it incentivizes workers to opt out of dues while retaining the benefits of a unionized workplace. Twelve states passed right to work laws within a year of the Act’s passage and six more passed similar laws by 1960 [26]. Unions pivoted to agency fees or fair share dues as a result of these legislative acts.
“Abood v. Detroit Board of Education: “The decision Alito worked diligently to overturn
In 1977, the Supreme Court established precedent for the right of public sector unions to collect fair share fees in Abood v. Detroit Board of Education. The case concerned the Detroit Federation of Teachers (Union) that democratically won the right to exclusively represent the city’s teachers. Their collective bargaining agreement included the traditional “closed shop” or “agency shop” clause, stipulating all workers support the union regardless of union status. Two separate groups of teachers filed different legal challenges, which were eventually consolidated in Abood.
Louis Abood was a Detroit teacher who claimed the closed-shop clause violated his First and Fourteenth amendment rights to protected free speech and association. The Court ruled against the plaintiffs, affirming the constitutionality of fair share dues.
The majority opinion, authored by Justice Potter Stewart, emphasized that a worker in a public sector union who disagrees with their union’s political pursuits “is not barred from expressing his viewpoint… Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing” [27]
The Court did set limits on how fair share dues are spent, however, stating they cannot be spent “for the expression of political candidate, or toward the advancement of other ideological causes not germane to its duties,” activities that can only be financed by members who agree to finance them [28].
The Abood ruling was largely based on two previous Supreme Court decisions: Railway Employees’ Department, American Federation of Labor v. Hanson (1956) and International Association of Machinists v. Street (1961). Right-wing Justice Lewis F. Powell Jr. issued a concurring statement that agreed with the ruling insofar as it prevented non-members from financing activities with which they disagree. He departed from the majority opinion in that he didn’t believe the First Amendment could distinguish between “collective bargaining activities” and “political activities” [29].
In Janus, Alito quoted part of Powell’s critique of the Abood ruling: “I am at a loss to understand why the State’s decision to adopt the agency shop in the public sector should be worthy of greater deference, when challenged on First Amendment grounds, than its decision to adhere to the tradition of political patronage.” [30].
The Supreme Court’s ruling in Abood can’t be appreciated without mentioning the historical moment it occasioned. Between 1955 and 1975, membership in public sector unions increased from about 400,000 to 4 million [31]. Many new members came from oppressed groups, particularly women and Black people, as racist and sexist hiring practices were less common in the public sector. The struggles of our class grow when they merge with others, and this was the case with the movements for Black freedom, women’s emancipation, and labor [32]. The attack on unions during the next period was central to a broader move against the growing power of the oppressed, although the capitalists didn’t win in Abood. It took them another four decades to do that.
It is noteworthy that the Court upheld the constitutionality of agency agreements in 1977 in large part because of a militant and growing series of movements for working and oppressed people. Forty years later in Janus, despite looking at a nearly identical fact pattern, the court ruled in the exact opposite way. The battle is far from over, however, and capital’s strategy hasn’t quite borne the fruit it hoped.
Building a united, multinational, and militant labor movement
Our class is courageous and inventive, capable of overcoming any and all obstacles put before us. Unions were prepared for the decision in advance, however, even before Alito objected to Abood in his majority opinion for the 2012 case, Knox v. Service Employees International Union. Like he did six years later in Janus, he called Abood “something of an anomaly” and criticized Court members who made the decision, finding it “hard to believe” they weren’t “fully aware” of his critiques [33].
The next step came in the 2014 ruling in Harris V. Quinn, which prohibited SEIU Healthcare Illinois & Indiana (SEIU-HII) from collecting fair share dues from nonmember home health care workers. Although the Court didn’t overturn Abood, it did pointedly criticize it.
In this majority opinion, again authored by Alito, he presents some of the same reasons he provides in Janus.
In anticipation of the Janus decision, public sector unions launched their own internal campaigns designed to counter corporate propaganda, investing resources and energy into New Member Orientation programs in particular [34]. Unions reminded their members and the public of the importance of unions: what unions have won historically, from limits to the working day to safer working conditions, how they elevate compensation standards in regions and industries where unions are strong, and how unions fight for equal treatment that, while imperfect, nonetheless results in far less pronounced racial and gender disparities between workers.
Two years after Janus, public sector unions reported minimal loss of agency fees. Without minimizing the consequences of the ruling, the anti-worker forces haven’t gotten the results they wanted. While Mark Janus’ union, AFSCME, lost 110,000 Agency Fee payers as a result, their anticipated 30 percent loss never materialized. At the same time, other public sector unions, such as the American Federation of Teachers, actually gained members [35]. Moreover, in 2022 the people of Illinois passed a workers’ rights amendment in November 2022, enshrining collective bargaining into the state constitution [36].
A Politico report found that, while the country’s largest 10 public unions lost paying members, all but one reported collecting additional funds from dues. Moreover, taken together, the 10 unions gained over 125,000 members [37]. As of 2022, union membership overall reduced by 13 percent. This is still consequential, particularly given the low rates of union membership pre-Janus, but it hasn’t weakened the power of labor or even the ability of unions to function effectively [38]. At the same time, our enemies are engaging in new tactics, such as legal challenges trying to claim prior dues paid by non-members. Thus far, the lawsuits have been unsuccessful.
The labor movement continues to win victories. Over 200 Starbucks stores have won union elections recently despite the firing of union organizers and high-paid union busting lawyers. In 2022, there was a 56 percent year over year increase in union petitions filed [39]. The ruling class tries and tries to hide the reality of their theft of our labor, and to beat us into submission. Class consciousness is growing across broad sectors of society and amongst various oppressed groups.
Janus is obviously a significant judicial setback. What is more significant, however, is our power to not only prevent it from draining unions of the resources they need, but to advance the interests of all working and oppressed people.
References
[1] Justin McCarthy, “U.S. Approval of Labor Unions at Highest Point Since 1965,” Gallup, 30 August 2022, available here.[2] Ernesto Huerta and Todd Emmenegger, “UC Academic Workers Win Historic Victories After 40 Day Strike,” Liberation News, 25 December 2022, available here.
[3] Hersch Rothmel, “The Janus v AFSCME Decision Is an Attack on Workers: Public Sector Unions Must Fight Back!,” Liberation News, 28 June 2018, available here.
[4] Mitchell Armentrout, “Mark Janus Quits State Job for Conservative Think Tank Gig After Landmark Ruling,” Chicago Sun Times, 20 July 2018, available here.
[5] Ben Joravsky, “As He Attacks Teacher Pensions, Rauner Also Makes Money From Them,” Chicago Reader, 12 August 2015, available here; Edward Siedle, “Big Public Pension Money Helped Bruce Rauner Grow His Business,” Forbes, 29 October 2014, available here.
[6] Monique Garcia, “Gov. Rauner Declares $188 Million in State Taxable Income for 2015,” Chicago Tribune, 11 November 2016, available here.
[7] Bruce Rauner, “Executive Order 2015-13,Respecting State Employees’ Freedom of Speech,” 09 February 2015,” available here.
[8] State of Illinois, “Gov. Rauner Attends Janus v. AFSCME Arguments Before SCOTUS,” 26 February 2018, available here.
[9] Pablo Ros, “Mark Janus Quits Public Service Job to Serve Big-Money Special Interests,” AFSCME, 23 July 2018, available here.
[10] Armentrout, “Mark Janus Quits State Job for Conservative Think Tank Gig After Landmark Ruling.”
[11] Illinois Policy Institute, “Mark Janus: Senior Fellow,” available here.
[12] “Janus v. American Federation of State, County, and Municipal Employees, Council 31,” 585 U.S. ___ (2018), 1, available here.
[13] Ibid., 10.
[14] Brandon J. Murrill, “The Supreme Court’s Overruling of Constitutional Precedent,” Congressional Research Service, 24 September 2018, appendix, available here.
[15] “Janus v. AFSCME,” 43.
[16] Ibid., 36.
[17] “Pickering v. Board of Education, 391 U.S. 563 (1968),” available here.
[18] “Janus v. AFSCME,” 33.
[19] Ibid., 41.
[20] Ibid., 47.
[21] Ibid., 48, 49.
[22] Rothmel, “The Janus v AFSCME Decision Is an Attack on Workers.”
[23] Brantly Callaway and William J. Collins, “Unions, Workers, and Wages at the Peak of the American Labor Movement,” Explorations in Economic History 68 (2018): 95-118.
[24] Philip Sheldon Foner, in Organized Labor and the Black Worker 1619-1973 (New York: International Publishers, 1978), 215-237.
[25] “American Communications Assn. v. Douds, 339 U.S. 382 (1950),” available here.
[26] Benjamin Collins, “Right to Work Laws: Legislative Background and Empirical Research,” Congressional Research Service, 06 December 2012, available here.
[27] “Abood v. Detroit Board of Education, 431 U.S. 209 (1977),” 220, available here.
[28] Ibid., 235-236.
[29] Ibid., 257; for more about Powell, see Derek Ford, “The ‘Powell Memo’ and the Supreme Court: A Counteroffensive Against the Many,” Liberation School, 06 April 2023, available here.
[30] “Janus v. AFSCME,” 44.
[31] Melvyn Dubofsky and Joseph Anthony McCartin, Labor in America: A History, 356 (Malden, MA: Wiley Blackwell, 2017).
[32] The labor struggle’s clear links with the Black struggle are exemplified by the Memphis Sanitation Workers Strike of 1968, a strike that ended in the assassination of Martin Luther King Jr. when 1,300 Black men went on strike to demand better working conditions, wages, and the recognition of their union (AFSCME) after two Black co-workers were killed on the job.
[33] “Knox v. Service Employees International Union,” 567 U.S. 298 (2012),” 2290, available here.
[34] Paul F. Clark, “The Impact of New Member Orientation Programs on Union Member Commitment: Evidence from a National Study in a Post-Janus Setting,” Labor Studies Journal 46, no. 2 (2021): 160.
[35] Ian Kullgren and Aaron Kessler, “Unions Fend Off Membership Exodus in Two Years Since Janus Ruling,” Bloomberg Law, 26 June 2020, available here.
[36] John O’Conner, “Illinois Voters Approve Collective Bargaining Amendment,” AP News, 15 November 2022, available here.
[37] Rebecca Rainey and Ian Kullgren, “1 Year After Janus, Unions are Flush,” Politico, 17 May 2019, available here.
[38] Daniel DiSalvo, “Public-Sector Union Membership Is Slowly Shrinking,” City Journal, 27 April 2022, available here.
[39] Office of Public Affairs, “First Three Quarters’ Union Election Petitions up 56%, Exceeding All FY21 Petitions Filed,” National Labor Relations Board, 13 July 2022, available here.
