Two years ago, many public sector unions were on a collision course with the Angel of Death. All five Republicans on the Supreme Court appeared ready to cut off a major source of union funding and encourage public employees to become free-riders who enjoy all the benefits of unionization without paying for it. Then, death came for Justice Antonin Scalia instead, and Republicans lost their majority on the Supreme Court.

The case that would have undercut public sector unions evaporated with four justices on either side of the case.

But history repeats itself, first as tragedy, and then as an even bigger tragedy. The role of the missing conservative firebrand justice, once played by Scalia, will now be performed by Neil Gorsuch. Senate Republicans held Scalia’s seat open for a year until Donald Trump could fill it with Gorsuch. And now Gorsuch is all but certain to hand Republicans a major victory at the expense of unions.

The free-rider problem

The central issue in Janus v. AFSCME is fees, often referred to as “agency fees” or fair share fees,” which unions collect from non-members to reimburse the union for the cost of services provided to those non-members. The Court will hear oral arguments in Janus on Monday.


By law, unions are required to bargain on behalf of every worker in a unionized shop, regardless of whether each individual worker chooses to join the union. And these non-members typically receive significantly benefits from the union they choose not to join. One study found that workers in unionized workplaces are paid nearly 12 percent more than similar workers in non-union shops.

The problem with this arrangement is that it creates a free-rider problem. If a particular worker will gain the benefits of unionizing without having to pay their share of the costs, many workers will become free-riders. Eventually, the union could collapse for lack of funds, leaving no one with the benefits of unionization.

To prevent this problem, union contracts frequently include a provision requiring non-members to pay agency fees, which reimburse the union for the cost of bargaining and otherwise advocating on behalf of these non-members. Meanwhile, a frequent tactic deployed by anti-union lawmakers is to ban contracts providing for agency fees — that’s what so-called “right to work” laws accomplish, they prohibit labor and management from negotiating a contract which uses this common method to ward of free-riding.

The lawyers behind Janus hope to impose a “right-to-work” regime on every public sector union in the country, and they rely on a rather creative understanding of the First Amendment to get there.

Unmanageable workplaces

“Bargaining with the government is political speech indistinguishable from lobbying the government,” a team of lawyers led by the anti-union National Right to Work Legal Defense Foundation write in their brief on behalf of the Janus plaintiff. Because agency fees effectively require non-members of a union to pay for bargaining on matters they may disagree with, these fees amount to compelled speech, according to the lawyers seeking to eliminate these fees, and that’s not allowed under the First Amendment.


There are a number of problems with this argument, including the fact that it lacks a limiting principle. If the First Amendment governs workplace bargaining, then many relationships between government employees and their managers could become completely unworkable. Consider a hypothetical proposed by, of all people, Justice Scalia, in a similar case attacking agency fees.

Suppose you have a policeman who — who is dissatisfied with his wages. So he makes an appointment with the commissioner, police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, I don’t — I don’t want to see this man again. Has he violated the Constitution?

If you take the National Right to Work Legal Defense Foundation’s argument seriously, the only intellectually honest answer to this question is “yes.” If there is one thing that the First Amendment absolutely does not permit, it does not allow police commissioners to declare certain kinds of speech out-of-bounds and to forbid individuals from engaging in that speech.

But that’s not just an absurd result, it is one that could prevent government employers from functioning effectively. How can an employer manage their employees when they aren’t allowed to tell them that certain topics will be discussed at certain appropriate times, and not whenever the employee feels like griping about how they feel mistreated?

This is why the Supreme Court has traditionally given the government more leeway to manage its own employees than it has when it tries to regulate the public at large. As Justice Anthony Kennedy wrote for the Court in Garcetti v. Ceballos, “government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”

Without this leeway, a public school wouldn’t be able to fire an American History teacher who decides to spend all of their classroom time teaching about their favorite episodes of Star Trek.

Picking partisan winners and losers

Unions are an ideological bête noire of the Republican Party. The party of capital will naturally resent organized labor.


But the GOP also has a very direct stake in undermining organized labor. The Constitution forbids unions from using agency fees to “contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative” — only workers who elect to join the union contribute to the union’s political activities. But the entire purpose of a right-to-work regime is to undermine unions and prevent them from thriving.

In the likely event that the Supreme Court sides against unions in Janus, that decision is likely to wreak havoc on union membership. And that will, in turn, undercut a major prong of the Democratic Party’s political infrastructure. Among other things, unions provide thousands of volunteers to mostly Democratic political campaigns. Without those volunteers, Republicans will be more likely to prevail in elections.

Janus, in other words, should not simply be understood as an effort to advance conservative economic policy. It also needs to be lumped in with cases like Crawford v. Marion County Election Board, which permitted a common method of voter suppression, Shelby County v. Holder, which struck down a key provision of the Voting Rights Act, and Vieth v. Jubelirer, which allowed partisan gerrymanders to thrive, and Bush v. Gore.

By stealing control of the Supreme Court, Republicans did not simply capture a branch of government that could implement some of their preferred policies and prevent Democrats from implementing many of theirs, they regained the ability to shape elections themselves.