Public-sector unions anticipate a loss before the Supreme Court

Janus v. AFSCME is one of the most important Supreme Court cases this term and perhaps one of the most important in decades. It concerns a claim that under the First Amendment, unionized government workers should not be forced to subsidize union speech to keep their jobs. This issue was to be decided in 2016’s Friedrichs v. California Teachers Association, but Justice Antonin Scalia’s death left the court in a 4-4 deadlock.

Most court observers expect Justice Neil Gorsuch to break this tie in Janus, so they sought to discern his views on labor matters from the recently decided Epic Systems v. Lewis case. (That decision concerned how the National Labor Relations Act and the Federal Arbitration Act interact.) The most interesting part about Janus to date, however, is what public sector unions and their allies are doing.

Epic Systems was a 5-4 decision that split along what many see as a conservative/liberal fault line on the Supreme Court. The majority held that employees could agree to settle wage disputes by using arbitration on a case-by-case basis. The majority also said that employers could use these “waiver” agreements to prevent any lawsuit (class action or individual) on the alleged activity. While the majority recognized that some could differ on the economic efficacy of arbitration, it held that Congress had meant to allow businesses to use litigation waiver agreements. Justice Ruth Bader Ginsburg and the other dissenters would have held that the waiver agreements were “armed-twisted” and therefore unenforceable. The dissent discussed the history of the NLRA at length and compared the litigation waivers to “yellow-dog contracts,” which prohibited employees from joining labor unions and have long been illegal. The dissent also used the judicial insult of “invoking the specter of [Lochner v. New York],” where the court overturned a law placing a daily and weekly hour limit on bakers.

Some observers have looked at Ginsburg’s rhetoric in Epic Systems and are using it to predict an outcome in Janus. Most of them say that Ginsburg and the other dissenters used strong language and discussed labor history since they are frustrated not just with Epic Systems, but also with the forthcoming Janus opinion. That opinion will likely be issued in late June.

But, Epic Systems significantly differs from Janus. Epic Systems concerned two federal statutes governing the private sector: one about arbitration and the other about collective bargaining. In interpreting statutes, Gorsuch is a textualist, which generally means he reads Congress’s texts as written and he then applies those laws without transforming them to meet his policy preferences. Janus concerns the Constitution, however, and it could overrule parts of public sector bargaining statutes in 22 states.

In interpreting the Constitution, Gorsuch is an originalist. That means in Janus he will try to understand what the First Amendment meant at the time it was adopted and apply that understanding to modern issues like forced subsidization of union speech. Interpreting the Constitution is different than interpreting statutes. Statutes typically provide the court more text to work with and the history surrounding enactment is often irrelevant; with the constitution, text is more sparse and historical context more important. The Epic Systems decision only shows so much about Janus.

It’s worth watching how unions and their supporters are preparing for the court’s next ruling. There are around five million public sector workers in states that have mandatory bargaining units, from which unions are allowed to collect agency fees. Using a fairly conservative figure of $600 per employee, unions collect around $3 billion in dues and fees annually. A First Amendment ruling in Janus would bear many similarities to right-to-work. Since Michigan’s public sector became right-to-work in 2013, the state’s largest teachers union has lost 25 percent of its membership and 22 percent of its dues money.

Seeking to prevent similar losses should the Supreme Court rule in favor of the plaintiff in Janus, unions have sought to have the employees in their bargaining units sign waivers that would allow them to still collect dues and fees even if they were not members. (Whether the Epic Systems dissenters will view these as arm-twisted workers will be fascinating). The unions have had their political supporters require new government employees to attend meetings at which they must endure a union sales pitch. Union allies are amending public records laws to prevent third parties from informing employees about Janus.

That’s significant, because recent polling indicated four out of five teachers surveyed were largely unaware of the case. These actions are those of entities that have long recognized their unconstitutional windfall will soon end.

Patrick Wright is the vice president for legal affairs at the Mackinac Center for Public Policy and the Mackinac Center Legal Foundation in Midland, Michigan.