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Supreme Court Deals Blow To Government Unions

People gather at the Supreme Court awaiting a decision in an Illinois union dues case, Janus v. AFSCME, on Monday.
J. Scott Applewhite AP
People gather at the Supreme Court awaiting a decision in an Illinois union dues case, Janus v. AFSCME, on Monday.
Supreme Court Deals Blow To Government Unions
Supreme Court Deals Blow To Government Unions GUEST: Glenn Smith, constitutional and public law professor, California Western School of Law

Our top story on Midday Edition, it was not a surprising decision, but still a significant setback for public-sector unions. The 5-4 U.S. Supreme Court ruling that workers can choose to not pay dues to help pay for collective bargaining was greeted by President Donald Trump with the celebratory tweet. Trump praised the decision as a big loss for the covers of the Democrats unquote. Scott Mullen vice president at the San Diego education Association had this reaction . >> today's ruling is in political attack on educators and political leaders across the country. It is attacking schools and public education. Despite today setback, education desk educators will not allow their voices to be silenced. The best way to advocate for students is to remain stronger together. >>> Joining me now is Glenn Smith law professor at the California Western school of Law. Welcome, Glenn. I assume the decision and Janice versus asked me was not a surprise because the court actually said on this case with the 4-4 decision last year. It was two years ago. The court has been gunning for this case for the last six years. You can say third time is a charm. >>> Conservative justice Neil Gorsuch made the fourth -- fifth vote for this . >> he presumably stepped in the role that Justice Scalia would have done in 2016 had he not died unexpectedly and provided the fifth vote for this view of the compelled speech doctrine into the First Amendment. >>> Doesn't the ruling in this case overrule a previous Supreme Court ruling . >> it does that's good the test of time for 41 years. I thought Justice Kagan made a strong argument that the usual reasons why the court even if he does not think the president is correct stays with it. People relied on it. It has become the fabric of contracts and the law. This is an unusual overrule. >>> Why did the majority on the court say workers can opt out of paying dues even though the union's collective bargaining may benefit them? >> It is what they said is a doctrine in the First Amendment called the compelled speech doctrine which is people cannot be forced to support positions they do not agree with. It was not well reconciled for this case from 41 years ago. Basically for 41 years, the dividing line has been that employees that do not want to support financially the ideological or political activities of their union can opt out of that. But that they should pay their fair share of the costs of union representation, grievances, getting better working conditions, etc. They should not be free riders. That is a commonsensical law a distinction of our law that drew. The majority said that given the fact that public employers are the government and because any kind of claim for better working conditions or even higher wages for public employees is a public issue or political issue, you cannot separate the political from the employment situation. >>> As you mentioned, the minority justices in their dissent talk about maintaining the status quo. >> This is one of those fascinating examples of conservative judicial activism. Conservatives who decry judicial activism step in to disturb a precedent for 41 years which is I say that this it does a good job at talking about how this is not a wild outlier but it is consistent with a lot of free speech cases. It is also consistent with the general difference that courts give to state and local officials, and how to best go what is good for their state and good for the government, etc. It was not just the unions defending this. Are a lot of state and local employers and governors and all of that that said to the court that this was an important status quo that should not be disturbed. Yet the court did that. >>> Does that affect union workers in private companies? Speed no just public employee workers because the First Amendment really only applies to government. Government is acting in this case like a private employer. That is why desk what was said that they had the same rights to decide how to work with unions that private employers do but the majority said no actually this is government forcing people to support a position that they don't agree with. >>> Before you go, the justice generally referred to as the swing vote on the U.S. Supreme Court, Anthony Kennedy, has announced that he will be stepping down. What do you see as the ramifications for the Supreme Court? >> These ramifications are huge. Justice Kennedy was not always a swing voter on issues. There are issues that I felt that he was on the wrong side of. But he always created the possibility that you could get five justices or more for expensive gay-rights, for rights for enemy combatants in Guantánamo and some other unpopular causes. He was a justice who is willing to share it desk to shed his conservatism when he felt that fairness at a gut level was involved. Not having that justice on the court and especially if he is replaced by someone who is a more ideologically pure conservative will make a huge difference in the balance of the court. >>> I have been speaking with Glenn Smith constitutional and public law professor. It was great to see you. >> Thank you a lot.

Updated 10:50 a.m. ET

In a blow to organized labor, the U.S. Supreme Court ruled Wednesday that government workers who choose not to join a union cannot be charged for the cost of collective bargaining.

The vote was a predictable 5-to-4 margin. Justice Samuel Alito wrote the majority opinion with the court's conservatives joining him.

"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 bargaining and related activities," Alito wrote. "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."

The decision reverses a four-decades-old precedent and upends laws in 22 states. It also comes on the last day of this Supreme Court term, adding an exclamation point on the final sentence of a chapter that began with the appointment of conservative Justice Neil Gorsuch and saw conservative wins in decision after decision. This term was also an affirmation of the risky political gambit played by Senate Majority Leader Mitch McConnell, who denied a confirmation hearing for Judge Merrick Garland, President Obama's pick for the court after Justice Antonin Scalia died.

The plaintiff in this case, Mark Janus, a child-support specialist for the state of Illinois, challenged a requirement that government workers who opt out of a union still have to pay partial dues to cover the union's cost of negotiation and other functions.

In 1977, the Supreme Court had drawn a distinction between such mandatory "agency fees" and other, voluntary union dues, which might be used for lobbying or other political activity.

Wednesday's decision erases that distinction. The court's conservative wing found that negotiations by public sector unions are inherently political and nonmembers cannot be compelled to pay for them.

"In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters," Alito wrote. "We have often recognized that such speech 'occupies the highest rung of the hierarchy of First Amendment values' and merits 'special protection.'"

Alito dismissed the argument that allowing non-members to opt out of negotiating fees would allow them to unfairly piggyback on their dues-paying coworkers.

Janus "strenuously objects to this free-rider label," Alito wrote. "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."

The high court heard a similar case in 2016, but deadlocked 4 to 4 after Scalia's death, giving public sector unions a two-year reprieve.

While the Obama administration sided with the union in that earlier case, the Trump administration backed Janus and his fellow union holdouts.

Wednesday's ruling is a victory for conservative activists who have been waging a multi-pronged battle against organized labor — and a potentially crippling blow for public sector unions.

"Public employee unions will lose a secure source of financial support," Justice Elena Kagan wrote in a dissenting opinion. "Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. 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," that is, allowing past rulings to stand.

"This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor," Lee Saunders, president of the American Federation of State, County, and Municipal Employees, said in a statement when the case reached the high court.

Government workers have been a relative stronghold in an otherwise shrinking labor movement. More than a third of the public sector workforce is unionized, compared with less than 7 percent in the private sector.

A survey by the AFSCME — the union Janus would have to pay into — found that if agency fees were no longer mandatory, 15 percent of employees would stop paying them while 35 percent would continue to pay. The balance of workers were "on the fence."

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