Alas, there seems little chance that the justices will heed the Volokh-Baude brief; since 2011, Justice Samuel Alito has been on a mission to take down public employee unions. He seemed to be on the verge of victory in 2016, with a case called Friedrichs v. California Teachers Association. The death of Justice Antonin Scalia, it seems likely, deprived Alito of his fifth vote, and resulted in a 4-4 decision affirming the fees. Scalia’s replacement, Neil Gorsuch, seems likely to be the fifth anti-union vote.
The issue in Janus is this: federal law allows (but does not require) state governments to recognize state employees to form unions; it allows (but does not require) states to bargain collectively with those unions; it allows (but does not require) states to permit workers to choose a union as the “exclusive representative” for “bargaining units” of employees such as teachers, correctional officers, or child-protective service workers. Under federal law, a public-employee union contract can’t require the workers to join the union; but an “exclusive representative” must represent all workers in a bargaining unit, members or not. Workers who don’t wish to join may (if the state so decides) be required to pay an “agency fee,” designed to compensate the union for the expenses of representation—not just bargaining for a contract but often administering grievance, health, training, and other programs.
Under a 1977 case Abood v. Detroit Board of Education, a union cannot use fees for political, lobbying, or litigation activities that go beyond the scope of representation. To allow the union to spend such monies, the court held, would violate objectors’ First Amendment rights against “compelled” speech; on the other hand, compelling the union to represent workers who paid it nothing would encourage “free riders”—and undermine the state’s lawful choice to use collective bargaining to ensure harmonious relations with its workers.
Th Abood precedent (despite fierce criticism from the right) was reaffirmed by the court many times; but in 2011, Alito, in an opinion called Knox v. Service Employees International Union, proclaimed that Abood had been wrongly decided. In the public employee context, he argued, even bread-and-butter union issues (wages, health benefits, pensions, work rules) are “political” issues, and thus any payment of fees was “compelled speech.”
Picking up on his cue, such groups as the National Right to Work Foundation have begun a quest to overturn Abood. They came close with Friedrichs; Janus, which will be argued on February 26, poses the identical question. Most of the briefing on the union side has argued that Abood struck the right balance—that is, that the advantage to the state and to workers of effective collective bargaining outweighs what Abood called the incidental “an impact upon [objectors’] interests,” as long as the union rebated that part of the fees used for purposes like “legislative lobbying and in support of political candidates.”