This case is being brought by lead plaintiff Mark Janus, who is a child support specialist for the Illinois Department of Healthcare and Family Services and pays an agency fee to the union AFSCME. He believes that paying agency fees for activities related to terms and conditions of employment in the public-sector is inherently political because the employer is the government, and as a result, is compelled association and speech in violation of the First Amendment. Lower courts have ruled against Janus, citing Abood. This past September, the Supreme Court agreed to hear the case.1

The Supreme Court’s decision could very well turn on the viewpoints of the recently appointed Justice Gorsuch. There is little legal precedent specifically on point with the constitutionality of agency shop agreements in Justice Gorsuch’s jurisprudence. But in light of Gorsuch’s philosophy of judicial restraint, I believe that he is more inclined to uphold a longstanding precedent rather than overturn it. After all, Abood was a unanimous ruling, and for Gorsuch to help overturn such a decision would be uncharacteristic of him.

The argument in favor of Gorsuch eschewing his pattern of judicial restraint and helping to overturn Abood is that he has previously demonstrated an expansive view of the First Amendment as it pertains to religious freedom, and as a result, may be sympathetic to the petitioner’s argument as it pertains to the First Amendment freedoms of association and speech, i.e. that paying agency fees for activities related to terms and conditions of employment in the public-sector is inherently political because the employer is the government, and thus, is compelled association and speech in violation of the First Amendment. In Hobby Lobby Stores v. Sebelius, Gorsuch joined the majority opinion on the Tenth Circuit, which found that closely-held, for-profit corporations are able to be exempt from a regulation if their owners object on the basis of a sincerely-held religious belief, if there is a less restrictive means of furthering that regulation’s interest.

However, in my view, this argument falls flat for a few reasons, not the least of which is that Abood already addressed and resolved these issues forty years ago. Those public-sector employees who pay agency fees are not part of the union: they cannot vote in union elections or ratify contracts, participate in internal union activities, or take advantage of member-only benefits offered by the union. Hence, there is no violation of freedom of association.

Additionally, Abood makes clear that agency fees cannot be used to subsidize political and ideological activities, and a case decided after Abood, Chicago Local Teachers Union v. Hudson, places procedural safeguards, such as audits and a neutral arbitrator, to ensure that agency fees are not being used for political purposes.

Based on the above, the Court will be reluctant to overturn precedent, and Gorsuch will likely either join a liberal majority in either upholding Abood, or will help carve out another exception to Abood similar to Harris that will attract the support of some liberal and conservative justices in forming a majority.

The Court could potentially change the default position from opting-out of paying for political activities to opting-in instead. In the 2007 case , the Court unanimously found that state opt-in laws that require public-sector unions to receive affirmative consent from non-members before spending their agency fees for political activities do not violate the First Amendment. Instead of overturning Abood, the Court could conceivably expand Davenport to mandate the opt-in requirement in states that have the agency shop.

In this scenario, I can envision three distinct tiers forming in the public-sector: members who pay full dues (which includes political activities), members who pay dues (sans political activities) in order to receive members-only benefits and take part in internal union affairs, and nonmembers paying an agency fee that does not go toward political activities.

But if the petitioners succeed in overturning Abood, right-to-work would take effect nationwide in the public-sector. If this happens, it would be a tremendous blow for public-sector unions who rely on dues and agency fees to adequately represent their bargaining unit. Expect to see unions look to represent their members only, rather than the entire bargaining unit that is comprised of non-members too. This would require unions to forsake seeking exclusive bargaining representative status on behalf of the entire bargaining unit, and would allow multiple, minority unions to organize. Or unions can undertake an effort to repeal Section 14(b) of the NLRA to rebuild in the private-sector.

Oral arguments for Janus are scheduled for next spring, with a decision likely to be handed down by June 2018. Stay tuned.

By: Kenneth St. John January 9, 2018

 1. For additional context on this matter, see “Janus v. AFSCME Council 31: A Crippling Blow for Public-Sector Unions? Part I” published on this website on 12/26/17.