Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.


  1. Janus is nothing more than a front for the billionaire governor in Illinois and other wealthy backers who want to eliminate unions who primarily fund the democratic party. Period.

    In taking away Muncie’s school district and handing it over to Ball State University, the very first thing the state construed was the ending of the local teacher union.

    The union was a necessary evil under capitalism. The billionaires and corporatists don’t want unions because they hurt profits. With capitalism, it’s either good for workers and bad for shareholders, or vice versa.

    The so-called “left” consisting of the DNC has no answer. Why is that? LOL

    Organizations, social movements, and political parties are forming on the left to usher in democratic socialism as a response to our Oligarchy’s oppression. The DNC is not one of them. The unions failed because of their own greed and poor leadership. They also failed because the DNC aligned itself with Wall Street where money and greed rules.

    The DNC is being abandoned by informed people because it’s a fraud. The unions were abandoned along with the people by the DNC. As we’ve learned, the DNC is an obstructive force to protect capitalism in its dying days.

    Globalization is inevitable, so we need a government and economic system which promotes peace and fair treatment of citizens/workers. Capitalism doesn’t work unless the Oligarchs control the world. The people are revolting around the globe against this idea.

  2. So, I pose a hypothetical question. Since Indiana is an ‘at will’ state, an employer might wish to discharge employees who are not dues-paying members of the bargaining unit. Is this possible? If not; why not?

  3. The plaintiff in “Janis” wants the benefits union negotiations bring, without having to subsidize the effort by paying union dues. He is one of the “takers” the Republicans talk about.

  4. It’s not just the courts,the DCCC has become so corrupted I don’t think an election will make a difference until the current top dogs at the Democratic Party are sent packing. There’s no way we can change a country if we don’t have the ability to change the organization itself. The only folks not wanting see any change seem to be those whose rice bowls are dependant upon the organization and the way it currently operates. Hell,it seems with every election we’re voting for the validity of consultants and the hierarchy of lobbyists, instead of candidates and policies.

    An excerpt or two:
    The system …ensures that national party campaigns rest heavily on slogan-filled, fabulously expensive lowest-common-denominator appeals to collections of affluent special interests. The Congress of our New Gilded Age is far from the best Congress money can buy; it may well be the worst. It is a coin-operated stalemate machine that is now so dysfunctional that it threatens the good name of representative democracy itself.

    This concentration of power also allows party leaders to shift tactics to serve their own ends….They push hot-button legislative issues that have no chance of passage, just to win plaudits and money from donor blocs and special-interest supporters. When they are in the minority, they obstruct legislation, playing to the gallery and hoping to make an impression in the media…

    Under the new rules for the 2008 election cycle, the DCCC [Democratic Congressional Campaign Committee] asked rank-and-file members to contribute $125,000 in dues and to raise an additional $75,000 for the party. Subcommittee chairpersons must contribute $150,000 in dues and raise an additional $100,000. Members who sit on the most powerful committees … must contribute $200,000 and raise an additional $250,000. Subcommittee chairs on power committees and committee chairs of non-power committees must contribute $250,000 and raise $250,000. The five chairs of the power committees must contribute $500,000 and raise an additional $1 million. House Majority Leader Steny Hoyer, Majority Whip James Clyburn, and Democratic Caucus Chair Rahm Emanuel must contribute $800,000 and raise $2.5 million. The four Democrats who serve as part of the extended leadership must contribute $450,000 and raise $500,000, and the nine Chief Deputy Whips must contribute $300,000 and raise $500,000. House Speaker Nancy Pelosi must contribute a staggering $800,000 and raise an additional $25 million.

    This explains why the DCCC is sabotaging progressive candidates challenging incumbents. Again as usual,follow the money. We don’t need boogeymen from faraway lands to threaten our so called democracy. The reality is that the genuine threats to our democracy are coming from within. And,it’s not just from the Republicans.

  5. Destruction of public employee unions will be a major victory for the current unhinged brand of populism that put 45 in the White House. Despite all the potential unintended consequences, there has to be a better way than the status quo to represent interests of public employees where, in some states including Illinois, the public employee unions are essentially bargaining with themselves, causing enormous fiscal stress for taxpayers and enormous gaps between the benefits of public employee and those of average workers in the private sector. This just creates more animosity and fuel for the populist backlash.

  6. Blaming the DNC and/or the DCCC is a worthless undertaking. Yes, we’ve all railed about the vagaries of unregulated capitalism and why/how it is destroying our country and the world’s economies. But to lay the burden of fault on Democrats doesn’t address the real issue: Money in politics.

    The real culprit is Citizens United v. FEC. The DNC has been FORCED to coddle up to Wall Street, because that’s where the election money is. The DCCC is in the same boat. Even back a century ago, Teddy Roosevelt identified money in politics as the bane of our existence. The First Amendment has been terminally perverted by draconian rulings like Citizens United fostered by Federalist judges like Scalia, Gorsich, Alito and Thomas.

    Blame them, and then blame all those Republicans who align with this self-immolating judiciary they appointed.

  7. Vernon T:”But to lay the burden of fault on Democrats doesn’t address the real issue: Money in politics.”

    To absolve them from accountability will not truncate the problem either. The Democrats have their own version of ALEC. To continue unconditional support of the Democratic Party will not solve the dilemma as well. In fact,that’s a big part of the problem. What did the Democratic Party do when they had the WH and the majority of congress? What have the Democrats accomplished to minimize big money in politics? Have the Democrats made a substantive effort in the advancement of paper ballots supplanting the dependence upon “hackable” electronic voting? Yes,BIG money is the problem. Where we differ is I will not continue to support a party willing to continue its unbridled support for BIG BUSINESS interests to the detriment and the abandonment of its base.

    Btw, since this might be in your neck of the woods,what are your thoughts wrt the DCCC scorched earth policy against Laura Moser?

  8. From the above – Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

    As William said: It’s not just the courts,the DCCC has become so corrupted I don’t think an election will make a difference until the current top dogs at the Democratic Party are sent packing. There’s no way we can change a country if we don’t have the ability to change the organization itself.

    The Senate confirmed Neil Gorsuch as the 113th justice of the Supreme Court with the support of only three Democrats, including Indiana Sen. Joe Donnelly. Donnelly is just another DNC Corporate Democrat who will vote the way his Wall Street Masters want him to vote.

    In West Virginia the Teachers Union has won a victory:
    The strike in West Virginia has been astonishing from the outset. Since Feb. 22, more than 20,000 teachers in all 55 counties took part in what became the longest statewide strike in West Virginia’s history. The mass action was led not by union leadership but by rank-and-file members who refused to accept a compromise proposal last week and continued to rally at the capitol in Charleston, demanding an increase in pay and healthcare protections. They were joined by other public-sector workers standing in solidarity with striking teachers.

    Note in the above paragraph – The mass action was led not by union leadership but by rank-and-file members.

    I do not recall reading or hearing any of our Democratic Leadership supporting the Teachers Union in West Virginia.

  9. William,

    I no longer live in Texas (Thank God!), but I’ve been following that situation with Moser. My friends back in Austin who are active Democrats are aghast at the DCCC’s behavior and have blasted them publicly while cutting off all donations to this irresponsible group. Clearly, they’ve taken their eye off the ball: Beating Republicans is the drill here.

    I don’t like Tom Perez’s “quiet” approach either, but the candidates themselves are looking like they are ready to usurp his leadership by winning in spite of him. I hope I’m right.

  10. Organized labor has a long history of social abuse by the wealthy, often a bloody struggle with such draconian abuses as child labor, slave labor, immigrant labor, sweatshop ownership, management and environment, conditions hazardous to limb, health and life with resulting loss of gainful employment, poverty, undernourishment disease and death.
    Some of these evils were slowly and partly resolved by medicine and science, but the greed of the wealthy always emerges in some way or other. It seems that only the enactment of regulatory laws has been able to mitigate.
    Lately it’s the obscene wealth of the evangelists whose coffers overflow with coin enabling them to live lavish lifestyles and widen the gulf between the haves and have-nots with tax “reforms” that further widen the gulf.
    What magic enabled the citizens of Alaska and some Middle East states to share in the bounty of nature that deposited tons of petroleum under the earth of their states enabling all citizens to have the security afforded by natural wealth. Why did this boon not advantage the citizens of Appalachia while the carpetbaggers scraped the earth and chopped the virgin trees? Why don’t all Americans share in the wealth of American minerals, forests and waters?
    Think about hugely successful programs like Social Security, etc., and imagine the fat-cat CEO who signs the checks to the US Treasury every three months. Depending on the payroll, those checks can amount to millions of dollars. The CEO has nightmares never thinking that half of that money is deducted from payrolls and is only temporarily withheld. Why wouldn’t she endorse a candidate who bellows about the evils of social programs, socialism leading to communism?
    What to do? First, VOTE. Think about which political parties support and do not denigrate needed social programs. Think about unregulated greed.
    Think about your environment and your government – are you satisfied? Read the political platforms online. Which meets your needs? Then endorse those candidates and make sure they represent you. If not, retire them at the next election. You have that power IF you vote.
    With some knowledge of all the abuses and little progress for humanity, I vote straight Democrat. While imperfect, it can be improved by us, the citizenry, The FATCATS in the GOP will not yield if we don’t teach them by sidelining them until the next election. Exercise your power: VOTE.

  11. We pay taxes for government functions and laws we may not support, but we have elections to change the policymakers and laws.

    Union leaders not only stand for election, but so do the bargained contracts which contain the agency shop or fair share fees. A majority of union members must vote to ratify such contracts or they cannot go into effect. The amount of the fees themselves must also withstand scrutiny to make sure fee payers are not paying for political, legislative, or any other union activity that is not DIRECTLY related to bargaining or maintenance (grievance processing) of the contract.

    Over the years, the union which with I was cheerfully associated found that many and sometimes most of the grievances came from non-members who wished to pay nothing for the legal and contractual research and time involved to process their grievance. Without their contract and union, they would have had to retain a lawyer and go to court to resolve their grievance. That would cost much more than their union dues and would not have provided or protected the salary and others benefits of the bargained contract.

    Agency and fair share fees are sought and ratified by union members to make sure their dues are not higher in order to subsidize the freeloaders (free riders) who refuse to pay their fair share of the costs to bargain, defend, and protect their salary and benefits.

  12. There are lots of trees in the forest and concentrating on each of them obscures the big picture problem. Everything about our government is moving in the wrong direction since it arrived in a torrent of propaganda and lies. Incompetence is rampant. Congress has become the House of Lords. To describe Trump as a loose cannon underestimates the problem. The deck is awash in loose cannons.

    What’s clearly at stake is not the present but the country and all it stands for.

    This year we have a rapidly closing window for a do over of the tragedy of ‘16. Now or never. Perfection is not the goal, survival is.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

    “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

  13. I have long held that Newton’s law of action-reaction has application in the social sciences, so I am not surprised that millennials and disaffected liberals are moving further left to bring some sort of equilibrium to the political process. Those who are currently in the driver’s seat whatever their party have gone too far but are dying off and will be replaced by those who will likely bring us the social democracy now in vogue in some European states. Janus is indicative of just how far a conservative court will go to maintain the status quo, and my only hope is that Roberts, as he did with Obamacare, or perhaps Kennedy, a sometime centrist, will upset the expected apple cart and vote to make the free loaders pay their fair share of the load – but I’m not holding my breath.

  14. delays in nominations are a fact with the new american order,(NWO) its a problem,and were sitting on our hands,gov scott walker of no unions fame in wisc, is doing this in two districts,and its headed for a court challenge. seems the inrush of demo voters,and ind voters are, making a effort, texas sees a conflict between dccc,and dnc, in nominations , this one against sen cruz,,, with a progressive canidate, this one will be a test for texas. the dccc should take a walk, and see how little money and big votes should rule,and be the norm.. imagine what the big dons,,,er donators had put that money in primary education… imagine,,,

  15. Everywhere I look in this nations governmental offices and departments we see the effects of dumb cold rules of obfuscation meant to do nothing more than hinder made by people who do not really care about the unintended consequences – they just don’t care – they are not effected and they are literally untouchable.

  16. So if Janus wins and wants nothing to do with the union and so won”t have to pay fees will he give back all the extra pay he”s getting to the government? (Rhetorical question.) Does seem like for those employees who want nothing to do with the union, as demonstrated by not paying fees, the government should be under no obligation to pay them or treat them according to union negotiated contract. I suspect that would change the equation for a lot of people like Janus. (Of course it would weaken the union position but you get the point.) writers help

Comments are closed.