Dealing a stark blow to American unions Wednesday, the U.S. Supreme Court ruled in a 5 to 4 vote that teachers, police officers and other public employees cannot be forced to pay membership dues, overturning a 41-year-old precedent.
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.
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.
However, today the court turned this theory on its head, arguing that forcing members to pay dues amounts to “compelled speech” and violates the First 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.
All four liberal justices dissented, with Justice Elena Kagan accusing the majority of conservative activism from the bench.
“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.
The issue set forth in this case was not new, having been brought before the court three years ago but derailed after Justice Antonin Scalia’s unexpected death. At that time, the court split 4 to 4 and could not issue a ruling.
Dropping the requirement that all covered employees pay union dues has long been considered the last nail in the coffin for unions, as it clips necessary funding to keep up operations.
According to the Bureau of Labor Statistics, the union membership rate dropped from 20.1 percent of American workers in 1983 to just 10.7 percent in 2017.