IMAGE: CNS photo/Leah Millis, Reuters
By Mark Pattison
WASHINGTON
(CNS) — By a 5-4 majority, the Supreme Court declared June 27 that one of its rulings
from 1977 was “wrongly decided” and overruled it, in a case on whether
public-sector unions could continue to make nonmembers pay fair-share fees
not related to the unions’ lobbying and political efforts.
As a result,
said the court majority, “neither an agency fee nor any other form of payment
to a public-sector union may be deducted from an employee, nor may any other
attempt be made to collect such a payment, unless the employee affirmatively consents
to pay.”
The
justices split along their customary ideological lines, with Chief Justice John
Roberts and Justices Samuel Alito, Anthony Kennedy, Clarence Thomas and Neil
Gorsuch in the majority and with Justices Elena Kagan, Sonia Sotomayor, Stephen
Breyer and Ruth Bader Ginsburg in the minority.
The
case is Janus v. AFSCME. Mark Janus is an Illinois state employee who contended
the union unconstitutionally made him pay fair-share fees, also known as agency
fees, and used the money to take positions with which he disagreed, essentially
compelling speech from him. The 1977 case the court overruled was Abood v.
Detroit Board of Education, in which the court allowed for the payment of such
fees.
“The
majority has overruled Abood for no exceptional or special reason, but because
it never liked the decision. It has overruled Abood because it wanted to,”
Kagan said in her dissent. “Because, that is, it wanted to pick the winning
side in what should be — and until now, has been — an energetic policy debate.”
Kagan’s
point was shared by the U.S. Conference of Catholic Bishops in an amicus brief
it filed in the case this year.
The
USCCB brief cited the prominent Supreme Court decisions of Roe v. Wade on
abortion, and Obergfell v. Hodges on same-sex marriage, as reason to deny Janus
relief; Janus’ position had lost at the Illinois Supreme Court.
The
high court “should leave constitutional space for the public policy position
supported for so long by so many bishops and bishop-led institutions, rather
than declare still another such position outside the bounds of what
policymakers are permitted to implement by law,” it said. “By its decision in
this case, the court should not only preserve that room for debate as to the
public-sector context now, but avoid any threats to it in the private-sector
context in the future.”
“Forcing
free and independent individuals to endorse ideas they find objectionable
raises serious First Amendment concerns,” said the majority opinion written by
Alito. “Whatever may have been the case 41 years ago when Abood was decided, it
is thus now undeniable that ‘labor peace’ can readily be achieved through less
restrictive means than the assessment of agency fees.”
“Abood
did not appreciate the very different First Amendment question that arises when
a state requires its employees to pay agency fees,” the court said. “Developments
since Abood, both factual and legal, have ‘eroded’ the decision’s ‘underpinnings’
and left it an outlier among the court’s First Amendment cases.”
Kagan,
though, rejected the majority’s conclusions.
“Rarely
if ever has the court overruled a decision — let alone one of this import — with
so little regard for the usual principles of ‘stare decisis.’ There are no
special justifications for reversing Abood. It has proved workable. No recent
developments have eroded its underpinnings. And it is deeply entrenched, in
both the law and the real world,” she said.
“Stare
decisis” is the principle by which judges are bound to precedents. Alito’s
majority opinion said, “Abood was poorly reasoned, and those arguing for
retaining it have recast its reasoning, which further undermines its ‘stare
decisis’ effect.”
“More
than 20 states have statutory schemes built on the decision,” it continued. “Those laws
underpin thousands of ongoing contracts involving millions of employees.
Reliance interests do not come any stronger than those surrounding Abood. And
likewise, judicial disruption does not get any greater than what the court does
today.”
Kagan
said, “Ignoring our repeated validation of Abood” — she cited six precedents — “the majority claims it has become ‘an outlier among our First Amendment cases.’
That claim fails most spectacularly.”
She
added, “Reviewing those decisions not a decade ago, this court — unanimously — called
the Abood rule ‘a general First Amendment principle.'”
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