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A few highlights from the majority Janus opinion

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* From the opinion…

JUSTICE ALITO delivered the opinion of the Court.

Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bar gaining and related activities. 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.

We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled. […]

Petitioner [Janus] strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.

Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments…are generally insufficient to overcome First Amendment objections.” Knox, 567 U. S., at 311. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining govern ment action that will have the effect of benefiting non members. May all those who are thought to benefit from such efforts be compelled to subsidize this speech? […]

In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay. […]

Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. […]

What about the representation of nonmembers in griev ance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b). Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s griev ance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate “the interests of [an] individual employee . . . to the collective interests of all employees in the bargaining unit.” […]

When an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer. The employee is effectively the employer’s spokesperson. But when a union negotiates with the employer or represents employees in disciplinary proceedings, the union speaks for the employees, not the employer. Otherwise, the employer would be negotiating with itself and disputing its own actions. That is not what anybody under stands to be happening. […]

For the reasons given above, we conclude that public- sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonethe less counsels against overruling Abood. It does not.

posted by Rich Miller
Wednesday, Jun 27, 18 @ 9:53 am

Comments

THIS:

In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay. […]

Comment by allknowingmasterofraccoondom Wednesday, Jun 27, 18 @ 9:58 am
Congratulations to Bruce Rauner on accomlishing everything he really wanted in his term as governor.

Comment by Roadrager Wednesday, Jun 27, 18 @ 9:58 am
With the union still having standing to solely negotiate I don’t see how they cannot just negotiate different pay structures for those in the union vs. the free riders. Call it a “bonus” to pay for negotiation costs. You get the bonus if you contribute, you don’t get the bonus if you don’t.

Comment by Person 8 Wednesday, Jun 27, 18 @ 9:58 am
I have not heard the term Shanghaied for awhile.

“he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”

Comment by Saluki Wednesday, Jun 27, 18 @ 9:58 am
==With the union still having standing to solely negotiate I don’t see how they cannot just negotiate different pay structures for those in the union vs. the free riders. Call it a “bonus” to pay for negotiation costs. You get the bonus if you contribute, you don’t get the bonus if you don’t.==

Nice try. That’s covered in the decision. Unions can’t abuse their power as the exclusive bargaining agent to disadvantage non-members.

Comment by Anonymous Wednesday, Jun 27, 18 @ 10:00 am
“ government to compel a person to pay for another party’s speech ”
This opens up a can of worms….

Comment by Person 8 Wednesday, Jun 27, 18 @ 10:01 am
It’s an Illinois law that protects free riders?

Comment by Not a Billionaire Wednesday, Jun 27, 18 @ 10:01 am
So I don’t have to pay taxes if I disagree with Rauner and Trump’s policies? SWEET!

Comment by Anonymous Wednesday, Jun 27, 18 @ 10:03 am
well of course janus objects to the free rider label. but it’s how he’s going to be known for the rest of time, so too bad.

Comment by Homer J. Quinn Wednesday, Jun 27, 18 @ 10:03 am
==There remains the question whether stare decisis none the less counsels against overruling Abood. It does not.==

Yes it does. The John Roberts court has made precedent a moot point.

Comment by BucknIrish Wednesday, Jun 27, 18 @ 10:04 am
Alito, “Illinois law does not specify in detail which expenditures are chargeable and which are not.” (re: how agency fee was determined)

oops.

Alito, “the nonmembers were told that they had to pay for
“lobbying,”
“social and recreational activities,”
“advertising,”
“membership meetings and conventions,” and
“litigation,” as well as other unspecified
“services” that “may ultimately inure to the benefit of the members of the local bargaining unit.”
The total chargeable amount for nonmembers was 78.06% of full union dues.”

AFSCME worked it too hard and broke Abood.

Comment by anonymous Wednesday, Jun 27, 18 @ 10:05 am
There’s a whole bunch of crap I’m paying for that I don’t believe in. Taxpayer funded abortions for one. I hope this blows up in a whole lot of special interest groups MY tax dollars support.

Comment by Anonymous Wednesday, Jun 27, 18 @ 10:06 am
===The John Roberts court has made precedent a moot point.===

Take a breath.

The Supreme Court has reversed itself before, before Roberts too. It will do so again. Precedent exists, until it doesn’t, on a case by case examination of that precedent.

Comment by Oswego Willy Wednesday, Jun 27, 18 @ 10:08 am
“Petitioner [Janus] strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”

Yeah, but he freely chose to work there and could have abandoned ship to work in the private sector. And what does this mean for paying taxes? If my local government passes policies that I disagree with, can I be a free rider and stop paying taxes on that “unwanted voyage?”

Comment by Frank Manzo IV Wednesday, Jun 27, 18 @ 10:09 am
hey, anonymous, don’t construe dues collected by a private union with taxes levied by the state. there’s a big difference.

Comment by jim Wednesday, Jun 27, 18 @ 10:09 am
This decision will be used far and wide by folks to challenge their federal, state and local taxes. All you have to do is not agree with how a government is spending your dollars on bargaining or communicating with other citizens and Janus offer you solid new precedent to point to file a challenge. A huge victory for freeloaders and tin foil hatters!

Comment by Harvey Wednesday, Jun 27, 18 @ 10:09 am
–We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so.–

“We” isn’t accurate, as no member of the current court was there in 1977.

And if stare decisis was important to Alito, he never would have gotten the gig. The Federalist Society types stepped up their vetting process and got loud after the supposed betrayal to the glorious cause by Souter (who got the gig after being vouched for by Sununu).

Comment by wordslinger Wednesday, Jun 27, 18 @ 10:09 am
==I have not heard the term Shanghaied for awhile.==

Me neither. Sounds kinda non-PC

Comment by BigMeanErn Wednesday, Jun 27, 18 @ 10:12 am
Shanghai’d in Shanghai
Stood on in Tucson
Ripped off and kicked right out the bed…
Shanghai’d in Shanghai
Laid low in ‘Frisco
Done in and left behind for dead

Comment by yinn Wednesday, Jun 27, 18 @ 10:14 am
“Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. […]”

If there’s a silver lining, this is it. It becomes a binary choice, between what people like Rauner offer to state employees, for example, which is insulting to the bodily waste droppings of animals (see strike vote), and what unions like AFSCME offer.

Comment by Grandson of Man Wednesday, Jun 27, 18 @ 10:14 am
@person 8:

Agreed! With all of the mergers and acquisitions the government cannot compel a person to pay for another party’s speech. I should have the option to opt-in or just pay for the service.

Comment by Mike Cirrincione Wednesday, Jun 27, 18 @ 10:19 am
guess I will read the majority opinion and dissent. It is a long dissent. The dissent may be the most interesting.

Comment by lost in the weeds Wednesday, Jun 27, 18 @ 10:20 am
Rich could you post some of the dissent for contrast. That would be super appreciated.

Comment by Honeybear Wednesday, Jun 27, 18 @ 10:21 am
“Many private groups speak out with the objective of obtaining govern ment action that will have the effect of benefiting non members. May all those who are thought to benefit from such efforts be compelled to subsidize this speech? […

Doofus equates the union w a voluntary group, like the NRA. Yes, the NRA uses speech to benefit those that pay and those that dont. Thats a large stretch for tangible benefits (pay, sick leave) that the union provides.

Comment by low level Wednesday, Jun 27, 18 @ 10:22 am
In light of the ruling, he can give back all the benefits if he was forced or whatever.

Another lawsuit will be in the offing from public employees who pay for services and those who do not?

Comment by low level Wednesday, Jun 27, 18 @ 10:28 am
Does this decision make it all or nothing now? Union or nothing, or does it still leave open the choice to be fair share?

Comment by Anonymous Wednesday, Jun 27, 18 @ 10:28 am
==or does it still leave open the choice to be fair share==

Fair share will no longer exist. You either pay full dues or not.

Comment by Demoralized Wednesday, Jun 27, 18 @ 10:29 am
Opt in is allowed. Not sure what fair share is now under this opinion.

Comment by lost in the weeds Wednesday, Jun 27, 18 @ 10:39 am
==If my local government passes policies that I disagree with==

Repectfully, your local government is not a union. Apple meet orange.

Comment by A guy Wednesday, Jun 27, 18 @ 10:40 am
For those wishing to start with Kagan’s dissent, there’s a full text up at vox.

https://www.vox.com/2018/6/27/17501724/supreme-court-unions-janus-opinion

The dissent starts on p. 56 of the document.

Comment by dbk Wednesday, Jun 27, 18 @ 10:48 am
“There’s a whole bunch of crap I’m paying for that I don’t believe in. Taxpayer funded abortions for one. I hope this blows up in a whole lot of special interest groups MY tax dollars support.”

Cool, bro. Check this out: I disagree strongly w the current ICE policy and the endless bulding of roads to nowhere and downstate towns i never heard of. I dont even own a car.

I hope this blows up in a whole lot of special interest groups (oil producers, road builders and boarder protection types) MY tax dollars support.

(Using your logic, of course, when and where do I get to file my case?)

Comment by low level Wednesday, Jun 27, 18 @ 10:54 am
My for-profit employer might engage in speech I disagree with, and I “pay” them in the form of the profits they earn off of my employment (there would be no profit to the company if it paid me the exact value my labor contributes to the company).

Does that mean the company has to give me exactly what I’m worth and not earn any profit off of my employment, since I disagree with the speech in which it engages?

This is a terrible precedent.

Comment by Techie Wednesday, Jun 27, 18 @ 10:57 am
@techie:

You can’t sue your employer anymore, only arbitration.

Comment by Mike Cirrincione Wednesday, Jun 27, 18 @ 11:03 am
The new Lochner era of SCOTUS is upon us.

Comment by hisgirlfriday Wednesday, Jun 27, 18 @ 11:07 am
==Take a breath.

The Supreme Court has reversed itself before, before Roberts too. It will do so again. Precedent exists, until it doesn’t, on a case by case examination of that precedent.==

Yeah I know how SCOTUS works, but this might be worth your time.

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2723&context=journal_articles

In case after case, Roberts and Alito abandoned the principle of stare decisis, and did so in a particularly insidious manner, indeed, in a manner that brought forth the scorn not only of the so-called “liberals” on the Court, but even of Justices Scalia and Thomas.”

Comment by BucknIrish Wednesday, Jun 27, 18 @ 11:08 am
===In case after case, Roberts and Alito abandoned the principle of stare decisis, and did so in a particularly insidious manner, indeed, in a manner that brought forth the scorn not only of the so-called “liberals” on the Court, but even of Justices Scalia and Thomas.”===

Still doesn’t change the point.

If you want to argue the rationale… that’s a whole different discussion, including the direct pointing to Alito and Roberts if you will.

Respectfully

Comment by Oswego Willy Wednesday, Jun 27, 18 @ 11:13 am
@OswegoWilly -

It’s cute that you think that the Republican justices of the Supreme Court overturned precedent in this case for any rationale other than pure power politics. It was clear what the ruling in this case was going to be the night that Trump was announced the winner in 2016 as I said so in comments on this blog right after the election.

Republican justices voted 5-4 to overturn decades of precedent in campaign finance laws in Citizens United because they believed eliminating campaign finance laws would help Republicans get elected.

Similarly, Republican justices voted 5-4 to overturn decades of precedent in Janus because they believed eliminating/weakening public unions would help Republicans get elected.

Talk about concern for the First Amendment is just the fig leaf Republican justices put on their opinions to enact Republican Party policy priorities to give such rulings a phony intellectual sheen for the masses.

This ruling is why Mitch McConnell and the Republican Party stole a Supreme Court appointment from Barack Obama, a man who actually won a majority of the popular vote when elected president and was a constitutional law scholar, in order to give that appointment to a fluke electoral college winner with no knowledge or respect for the rule of law.

Maybe this ruling will wake up national Democrats to the need to campaign on the fact that we have three political branches of government and that SCOTUS matters for things besides abortion.

Comment by hisgirlfriday Wednesday, Jun 27, 18 @ 11:38 am
A question to those who know something about labor law and have read the opinion: Can a union waive its right to be the sole negotiator for the employees? If so, it seems that unions should do so, and negotiate a higher salary for members. This would also eliminate the free rider problem.

I understand that current labor law might not allow this. But can one not argue that a law that forces union members to negotiate on behalf of free riders is unconstitutional forced speech? (Assuming the union is willing to waive its right to be sole negotiator)

Comment by WIU prof Wednesday, Jun 27, 18 @ 11:55 am
===It’s cute that you think===

Elections. Have. Consequences.

If you want to intellectually attack the judicial institution, that’s also what the GOP has done.

I support labor, even more specifically and pointedly, the trades…

It’s not that I think or you think it’s cute… in a 5-4 decision, Abood was overturned by Janus.

I heard for months, both sides, Clinton and Trump was for a seat… on the highest court in America.

Doesn’t mean I like or agree with the ruling, but I’m not going to systematically condemn an outcome that I knew was possible because I knew what Clinton/Trump also meant beyond the Oval Office.

Respectfully, it’s not being cute by me by understanding that elections have consequences and then not being surprised by those consequences.

Comment by Oswego Willy Wednesday, Jun 27, 18 @ 11:58 am
==So I don’t have to pay taxes if I disagree with Rauner…==

Only if you’re retired.

Comment by City Zen Wednesday, Jun 27, 18 @ 12:02 pm
==Yeah, but he freely chose to work there and could have abandoned ship to work in the private sector.==

Does the state or union pay his salary?

Comment by City Zen Wednesday, Jun 27, 18 @ 12:04 pm
@OW

Good to know we are in agreement then that this was a political ruling and not one based in actual concern for the First Amendment. Your earlier post acting like stare decisis is no big deal gave me the impression (apparently mistaken) that you thought this opinion was correctly decided.

That said, if you think stare decisis doesn’t matter, you are wrong. With every new activist partisan opinion the Roberts court delivers (with a full third of the court’s judges now having been appointed by presidents who did not originally win a popular vote) our democratic republic gets less stable and more fragile as the rule of law plays second fiddle to partisan passions of the day.

This is the kind of stuff that leads to civil wars in the long run.

Comment by hisgirlfriday Wednesday, Jun 27, 18 @ 12:14 pm
===Good to know we are in agreement then that this was a political ruling and not one based in actual concern for the First Amendment===

No. Here’s what I wrote, exactly as I wrote it.

===If you want to intellectually attack the judicial institution, that’s also what the GOP has done.===

And…

===Doesn’t mean I like or agree with the ruling, but I’m not going to systematically condemn an outcome that I knew was possible because I knew what Clinton/Trump also meant beyond the Oval Office.===

The justices ruled 5-4 using legal rational, and the law.

I’m not going to take ruling that occur and base outcomes on the election, as the election dictated the makeup, because attacking our institutions cripples the fragile chance we all must have in a democracy, ruled by laws.

===Your earlier post acting like stare decisis is no big deal gave me the impression (apparently mistaken) that you thought this opinion was correctly decided.===

Again, the Supreme Court has overturned itself before abd during the Roberts Court, and will do so long after this court is gone. To say they didn’t use legal rationale at all, but pure politics, I’m not crossing that bridge, while knowing the makeup of the court can and often dies factor in case outcomes, that may include overturning themselves.

===With every new activist partisan opinion the Roberts court delivers (with a full third of the court’s judges now having been appointed by presidents who did not originally win a popular vote) our democratic republic gets less stable and more fragile as the rule of law plays second fiddle to partisan passions of the day.===

Yep. That can also be true… but your beef might be with the Senate, not with sitting justices.

There was a time Robert Bork couldn’t get a seat on the court… advise and concent and activist judge fears may need to be more of a concern than just lip service.

Comment by Oswego Willy Wednesday, Jun 27, 18 @ 12:25 pm
There is a real possibility that, in the long run, this could be the best thing for labor.

The reason I say this is that, with few exceptions, labor has not been very active in their own cause other than trying to engage politically through donations but not actions. This may get people in the streets.

If I were representing labor I would head to court to try to overturn the laws that require them to represent “free riders” whom the the far right have created as a new class of welfare recipients.

In education we have very few “fair share” recipients and I doubt this will start a tidal waive of fair share.

Comment by JS Mill Wednesday, Jun 27, 18 @ 12:51 pm
You just said “Elections. Have. Consequences.”

Now you are sayin “I’m not going to take ruling that occur and base outcomes on the election, as the election dictated the makeup, because attacking our institutions cripples the fragile chance we all must have in a democracy, ruled by laws.”

Pick a lane already, dude. Anyway you were right the first time when you said elections have consequences (with the caveat that sometimes they don’t, like when McConnell uses the power of his Senate majority to nullify an election for president)

But getting back on track… Just pretending that the Supreme Court is an apolitical institution doesn’t make it so, particularly when all evidence is to the contrary when it comes to this particular Roberts Court.

I too wish to see the Supreme Court a respectable institution that stands above partisan politics and for the rule of law. However, when the Supreme Court rulings show that it isn’t that any more, this needs to be called out so the people can try to fix it or put pressure on the Court to stop acting that way.

You get that the Janus ruling isn’t a one-off, right? That this is a recurring theme of the Roberts Court? Not just Janus. Not just Citizens United.

The Roberts Court threw the Voting Rights Act in the garbage because it got in the way of Republican politics.

The Roberts Court approved Ohio voter purges so it could help Republican partisan interests.

The Roberts Court approved voter ID laws so it could help Republican partisan interests.

The Roberts Courts overturned lower court rulings against partisan gerrymandering so it could help Republican partisan interests.

And so on and so forth.

Me speaking truth about the Roberts Court helps our democracy. It doesn’t hurt it.

Oh and boohoo that Robert Bork couldn’t get a seat on the Supreme Court. This is the guy who executed the Saturday Night Massacre on behalf of Nixon because Nixon promised him a SCOTUS seat. It was just and right that he never got there after what he did to enable Nixon’s lawlessness.

Comment by hisgirlfriday Wednesday, Jun 27, 18 @ 1:01 pm
===Oh and boohoo that Robert Bork couldn’t get a seat on the Supreme Court. This is the guy who executed the Saturday Night Massacre on behalf of Nixon because Nixon promised him a SCOTUS seat.===

Advise and consent. Happened there.

Happened also with Gorsuch, Roberts, every justice confirmed.

===However, when the Supreme Court rulings show that it isn’t that any more, this needs to be called out so the people can try to fix it or put pressure on the Court to stop acting that way.===

Why you think I haven’t picked a lane.

I’ve yet to see, while the leanings of members often see themselves in decisions, the rule of law, although you may not like the result, is still being respected.

We have a right-leaning court, it’s not a kangaroo court.

If that’s is your take, it may not be, but it’s not my take.

Now, Justice Kennedy announces his retirement.

Will Dems in the Senate easily let a far right justice be confirmed, will the Senate look blindly at the credentials, no matter a possible right lean on the bench?

Comment by Oswego Willy Wednesday, Jun 27, 18 @ 1:12 pm
Spring is the right time to convey your automobile in for a full inspection to establish any mior issues, before they develop into major ones. http://en.calameo.com/accounts/5459317

Comment by Bennie Wednesday, Jun 27, 18 @ 1:23 pm
==He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.==

And the court lets the union continue to shanghai him.

Comment by Whatever Wednesday, Jun 27, 18 @ 1:50 pm
Who will now negotiate for the benefits gained for the non union members. Will a new union be formed or will they take what the Governor gives them. Victory maybe what they asked for and received but not the answer they wanted.

Comment by bear3 Wednesday, Jun 27, 18 @ 3:37 pm
Republicans already confirmed a young lad just out of law school who has never tried a case for a lifetime federal judgeship. I have no confidence in advice and consent any more.

Comment by Chicago Barb Wednesday, Jun 27, 18 @ 3:50 pm
“ government to compel a person to pay for another party’s speech ”
This opens up a can of worms….

No, it won’t.

Ideology Trumps legal precedent and law in this country.

Comment by Morty Wednesday, Jun 27, 18 @ 4:00 pm