Are public employees who opt out of union membership free riders or compelled riders? That’s the issue now before the Supreme Court in an important First Amendment case.
Mark Janus is an Illinois state employee who declined to join the local union. But he discovered that the state was deducting an “agency fee” from his paycheck to cover his share of the costs of collective bargaining. He soon found out that a 1977 Supreme Court case, Abood v. Detroit Board of Education, upheld agency fees under the theory that the state has compelling interests in dealing with an exclusive representative for its employees, and in order to prevent labor unrest.
But Abood has been living on borrowed time. In 2012 and 2014, a majority of the Supreme Court questioned its constitutional validity for imposing a “significant impingement” on public employees’ free speech and association rights.
In 2016, the court was poised to overrule Abood in a case involving the California teachers’ union. But with Justice Antonin Scalia’s sudden death, the remaining eight justices deadlocked 4-4. After Neil Gorsuch took his seat on the Supreme Court, another challenge to Abood quickly made its way up to the justices. Now, they are presented with another opportunity to overrule Abood and make clear the First Amendment protects public employees.
This piece originally appeared in The Detroit News