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SCOTUS wraps up term with big bang

| June 28, 2018 1:00 AM

The travel ban isn’t the only Supreme Court decision making national waves. Wednesday brought a tidal turn in union law, overturning decades-old precedent and which could result in an exodus of public employees from, and their payments to, government-service unions. More than a third of public employees are unionized, compared with just 6.5 percent of private sector counterparts, according to a January Bureau of Labor Statistics report.

Back in 1977, the Supremes held Abood vs. Detroit Board of Education case that a public-school teacher who did not join the union could still be forced to pay limited fees, as long as those funds went to collective bargaining rather than subsidizing political activities (called “agency shop” arrangements). Twenty-two states require public employees to pay such fees whether or not they elect to join, with the idea that union work benefits all employees (e.g., bargaining to raise salaries, increase benefits, or negotiate common grievances), not just union members.

Wednesday’s decision in the Janus v. AFSCME case, which originated in Illinois, reversed Abood on First Amendment grounds, holding that requiring a non-union, government employee to pay such fees for collective bargaining violates their right to free speech. A hint the court could head in this direction happened back in 2014’s Harris v. Quinn, when they declined to extend Abood to publicly funded, in-home care workers, saying those workers weren’t public employees. But the court always stopped short of preventing agency shop agreements generally, affirming the practice in 2016’s Friedrichs v. California Teachers Association.

Until now.

Mark Janus, an Illinois child-support specialist, challenged a state requirement that government workers who opt out of unions must pay $45 monthly to cover union contract negotiation costs.

“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.” — Justice Samuel Alito, writing for the majority in Janus.

The Janus decision effectively erases a controversial 40-year-old line which distinguished between collective bargaining and other lobbying or political activities. Justice Alito has consistently criticized that position in other union cases since taking the bench in 2006. This ruling is also the last one expected for this term, an exclamation point on a decision year with clear conservative messages. A new term begins in October.

To read the full decision, as well as the briefs on both sides of this and other cases, see Scotusblog.com/case-files/cases (user-friendly, maintained by lawyers and law professors) or the official site Supremecourt.gov.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network with degrees in international relations and law. Contact her at: Sholeh@cdapress.com