Amid the hubbub of Justice Anthony Kennedy's announcement Wednesday, you might have missed just how bitter and sad the cries of union leaders became over the Janus v. AFSCME decision. And one important aspect of the ruling may have been neglected.

Janus, of course, barred public sector unions from collecting money from nonconsenting government workers who did not want to union members. But the real gut-punch comes in the last passage of the opinion, pertaining to its implementation.

Justice Samuel Alito, in handing down this ruling, could have just quit after establishing that government violates workers' First Amendment rights when it forces them to contribute financially to a union. He could have allowed unions and Democratic state legislatures to devise underhanded, evasive measures in order to trap workers in bureaucratic mazes, from which they would have to figure out how to stop paying. ( The unions did this for years in Michigan to prevent attrition after the passage of right to work.) Eventually, another case from a frustrated worker might have reached the Supreme Court, at which time justices (and who knows who will be on the court by then) would have had to make rulings about implementation.

Instead, Alito nipped it in the bud, saving everyone years of legal wrangling. Near the very the end of his majority opinion, he wrote:



Under Illinois law, if a public-sector collective bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. No form of employee consent is required. This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay....Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.



That's the killer part right there. Fee-payers are not obligated to pay a single penny more. They do not have to opt out of paying — rather, they must be made to opt in or else they pay nothing. And so what we are about to see now is a real-life test of what unions are worth to those they currently represent.

The first proof will be in whether the fee-payers — nonmembers forced to financially support a union — choose to keep doing so voluntarily. The second will be whether members jump at the chance to become nonmembers, given that now the savings involved in resigning their membership will be substantial.

If public-sector workers stick to their unions, we'll know they felt like they were getting a good deal all along, and this decision will be less consequential. On the other hand, what conclusion will we be able to draw if we see members attached to unions quit in very large numbers? That they believe the union has been ripping them off this entire time.

In Wisconsin, public-sector union membership fell from over 175,000 in 2010 to less than 70,000 last year, according to Census data compiled by UnionStats.com, a union data project by two professors that is housed online at Georgia State University. That's a decline of 62 percent since Act 10 gave government workers the choice not to have the union take a slice of each paycheck. Before Act 10, nearly 50 percent of Wisconsin's state and local government employees were paying dues or fees. Today that number is below 22 percent.

Even before Janus was handed down, unions were already scrambling to find ways of preventing members from quitting — some reasonable, others underhanded. Either way, the Janus decision's requirement of a worker opt-in for fee-payers means that the results of this ruling could be quite dramatic, and telling.