Will the Supreme Court Unravel Public Employee Unions?

In Chronicle of a Death Foretold, a 1981 novel by Nobel laureate Gabriel García Márquez, twin brothers in a port village stalk and murder a neighbor for the supposed crime of deflowering their sister. García Marquez’s anonymous narrator, tracing the roots of the crime years later, finds that almost everyone in the nameless town knew that Pablo and Pedro Vicario were planning to murder Santiago Nasar; no one, however, warned the victim or stopped the killers.

Townspeople had different reasons. Some thought the killers were bluffing, or that they changed their minds after a scolding from the mayor. Still others meant to pass on a warning but, distracted by a wedding feast and a visit from the local bishop, simply forgot. A few did not bother because they concluded that the murder was inevitable, and thus the victim was in effect dead already.

The authorities later sent in a magistrate to investigate—but “at the conclusion of his excessive diligence,” the magistrate had not “found a single clue, not even the most improbable, that Santiago Nasar had been the cause of the wrong.”

Even so, “[t]he lawyer stood by the thesis of homicide in legitimate defense of honor, which was upheld by the court in good faith, and the twins declared at the end of the trial that they would have done it again a thousand times over for the same reason.”

This term at the U.S. Supreme Court seems likely to end with an assault foretold—on America’s public-employee unions. It will come in a case called Janus v. American Federation of State, County, and Municipal Employees, Council 31, which was granted review on September 28. Janus challenges—for the third time in five years—the financial stability of public employee unions. By coincidence, these unions are an important pillar of the Democratic Party.

This is a constitutional dispute conjured more or less out of thin air over the past five years by Justice Samuel Alito.

Janus will be the third attempt since 2012 to gut the unions by court order. Formally it poses a First Amendment question; but under the surface, its central issue is whether public-employee unions are helpful labor organizations or baneful big-government lobbies.

That factual question, as we will see below, will be resolved without any factual record whatsoever.  The challengers don’t think facts are relevant—or, perhaps, they regard as relevant only one fact: they think there finally are five votes to attain this long-sought political goal.

The assault foretold began in 2012, with a fairly ordinary labor-law dispute entitled Knox v. Service Employees International Union. To understand Knox and what followed, consider a few details about labor law. Under the National Labor Relations Act, state governments have leeway to structure their relations with their own employees. Some states do not allow their employees to bargain collectively at all; others permit employees to form unions and negotiate, but permit non-members to opt out of the unions altogether; and some—roughly half—permit the employees in a given unit to designate a union as their “exclusive representative,” with authority to negotiate for all the unit’s workers in areas like wages, benefits, working conditions, and on-the-job grievances.

Even in “exclusive representative” states, however, workers can’t be required to join a union. That requirement, the courts have long held, would infringe their First Amendment right of association. However, non-member workers receive the benefits of the union in matters like wages; and thus, in about half of the states, they are required to pay an “agency fee” to the union for those services. This fee is calculated based on a member’s union dues, minus the costs of the union’s “non-chargeable” expenses—overtly ideological activities like political campaigning, legislative lobbying, and litigation for union causes.

In a 1977 case called Abood v. Detroit Board of Education, dissenting Detroit teachers argued that paying an “agency fee” to a public employee union violated their First Amendment free-speech rights, because the funds were used to negotiate with government—an activity that, they said, will always have a political aspect, even when only focused on workplace issues. (Public-employee salaries and pensions, for example, impact overall budget levels; tenure and security rules influence education policy, etc.) Thus, they argued, paying the fees amounted to “compelled speech.”

The Abood court rejected that claim, however. “Such interference [with First Amendment rights] as exists,” it said, “is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” That is, the court reasoned, legislators weren’t wrong to think that a union designated by a majority would make employer-workforce relations smoother. If not required to pay for “chargeable” expenses, the court reasoned, non-members would be “free riders,” profiting from the union’s efforts but refusing to pay for them. In the long run, free-ridership would lead workers to refuse to join the union; this would sap the vitality of the union and thus spoil the state legislature’s chosen scheme for achieving “labor peace.”

Over the next three decades, the court heard challenges to specific public-union expenses, finding some “chargeable” and some not. But states were left to decide for themselves whether to allow public unions and if so how. The question was debated widely, and settled the old-fashioned way: by politics, in front of state legislatures. Some states expanded employee rights, others contracted them. Some states banned collective bargaining altogether; others allowed some employees to form unions and banned organizing by others; some allowed employees to strike under certain conditions, others banned strikes altogether.

Then came the Republican electoral tide of 2010. As University of Toledo law professor Joseph Slater writes, “In 2011, an unprecedented number of states enacted laws limiting or eliminating public sector bargaining rights. Such moves took place in Wisconsin, Ohio, Idaho, Illinois, Indiana, Massachusetts, Michigan, Nebraska, Nevada, New Hampshire, New Jersey, Oklahoma, and Tennessee.”

Anti-union forces seemed to be winning the political battle. It was at precisely this point, however—when the public was deeply involved in wrestling with its complexities—that Alito first suggested that the court decide the issue on its own. In the 5-4 majority opinion in Knox, Alito let the world know that he and his fellow conservatives would like to get rid of “fair share” fees altogether. The Abood court was wrong, Alito wrote: “free-rider arguments ... are generally insufficient to overcome First Amendment objections.”

The message was the judicial equivalent of Henry II’s “will no one rid me of this meddlesome priest?” By 2014, a new case, Harris v. Quinn, materialized. Harris was a challenge to agency fees paid by Illinois home-health aides working in a state-federal program designed to keep disabled people in their homes. Though the union had been authorized by overwhelming vote of the legislature,  and approved by a majority of the workers, Alito said at oral argument that he, for one, smelled not just a rat but a Democrat: “Governor Blagojevich got a huge campaign contribution from the union and virtually, as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers?”

In June 2014, the court ruled against the union scheme in Harris. The home health aides were not “full-fledged public employees,” the 5-4 majority said. Alito wrote that opinion too. For people who work in the home, he said, “labor peace” is not important. He cited a provision of the NLRA that bars unions for those in “domestic service.” (He didn’t mention that the provision was added by Jim Crow-era Southern lawmakers who wanted no federal meddling with their black butlers, cooks, and maids.)

The court had not yet gutted union rights for “full-fledged” public workers, however. The apparent chance to do so came in the 2015 term, with a case called Friedrichs v. California Teachers Association. California defended its statute before the court, and 21 other states and the District of Columbia filed a brief supporting the union. At oral argument, however, Republican lawyer Michael Carvin, representing the objectors, assured the court that these states didn’t really want to win the case: “They don't care about how robust or effective this union is,” he said with a straight face. “Indeed, if anything, they don't want them to be effective, because nobody wants a strong bargaining partner that's going to drive up public expenditures.”

Carvin could peddle this eyewash because, at his clients’ insistence, there had been no trial, and there was thus no evidence about the actual benefits, or lack of benefits, from the “fair share” scheme. The anti-union forces had told the courts below to hurry up and rule against them, so they could get to the Supreme Court and win. Friedrichs was to real litigation roughly what the stabbing of Caesar was to parliamentary procedure.

Before the court could announce its decision, however, Justice Antonin Scalia died. In March 2016, the court announced that the surviving justices had tied 4-4, meaning that the four remaining conservatives were probably ready to take down unions even for  “full-fledged” public employees. The tie, however, meant that the union victory in the Ninth Circuit was affirmed. Public employee unions seemed to have dodged their death foretold.

Then Senate Majority Leader Mitch McConnell stepped forward to claim Scalia’s seat as property of the Republican Party. In the spring of 2017, Neil Gorsuch took  the seat his party had withheld from President Barack Obama’s nominee, Merrick Garland. Not long after he took his seat, another “case” materialized, again without a record or indeed a pretense of anything new other than a change in the court’s personnel.

The court has not yet scheduled oral argument. If only García Márquez were living, perhaps he would be able to do justice to the solemn, farcical tone we can expect.

“Fatality makes us invisible,” García Márquez’s nameless lawyer notes. This spring is likely to see a killing that will happen in plain sight, with the long-sharpened knives demurely hidden under the black robes of the law.