Janus v. AFSCME: What was the argument against worker choice?
While the majority of Justices on the U.S. Supreme Court agree that protecting the First Amendment rights of public sector workers is more important than protecting the bank account of government unions, four of the Justices have a very different opinion.
Justice Elena Kagan, joined by Justices Breyer, Bader Ginsburg, and Sotomayor, wrote a lengthy dissent railing against the majority opinion in the case of Janus v. American Federation of State, County, and Municipal Employees (AFSCME). The 28-page diatribe calls the majority “black-robed rulers” and says their analysis of the law that led them to prioritize the protection of First Amendment rights over maintaining the status quo “comes up short.”
Her primary arguments seemed focused less on constitutional concerns than on the impact the ruling will have on government labor unions.
Take Justice Kagan’s assertion that “Public employee unions will lose a secure source of financial support.”
Indeed. That’s a good thing considering that secure source of financial support has been forcibly extracted from public employees’ paychecks for 41 years and deposited into the bank accounts of government unions. Many of those workers don’t think the union does a good job representing them, their values, or their economic interests.
Justice Kagan goes on to say, “There are no special justifications for reversing Abood. It has proved workable.” I’m sure the aforementioned workers would disagree; workable for the unions, not so much for those who have a portion of their paycheck siphoned off against their will. And protecting the First Amendment rights of workers seems like the best justification one could have for reversing the Abood decision (which allowed unions to compel public workers to pay them), which the majority opinion declared was “poorly reasoned” and “wrongly decided.”
As written by the majority:
“When speech is compelled … additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning…”
But Justice Kagan clearly disagrees, declaring, “The First Amendment was meant for better things.”
Justice Kagan’s other concern was on the “havoc” overturning Abood would wreak on “reliance interests.” Meaning the idea that unions can force workers to pay them has become so “entrenched” in how unions operate it is inconceivable that the status quo should be changed. She also lamented that governments will now have to, “come up with new ways—elaborated in new statutes—to structure relations between government employers and their workers.” Oh the horror!
Apparently, righting a wrong and restoring public employees’ First Amendment rights rocks the boat too much: “…judicial disruption does not get any greater than what the Court does today.”
A theme throughout the dissent is criticism of the majority’s staunch defense of the First Amendment, saying the majority opinion has the effect of “weaponizing the First Amendment” and “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.”
The First Amendment is a weapon, and a powerful one. It is why the American Founders thought it so imperative to guarantee every U.S. citizen the inalienable right to free speech and protection from compelled speech. It is a weapon that equalizes ordinary citizens and shields them from government tyranny.
In the case of Abood, the “workaday economic and regulatory policy” of forced unionization had the chilling effect of depriving public sector workers of that powerful weapon guaranteed by the Bill of Rights. As observed by Thomas Jefferson, “an unarmed man may be attacked with greater confidence than an armed man.” And so it has been for the past 41 years that public sector workers have been victimized because their First Amendment weapon had been stripped from them.
Thanks to the majority opinion, that power has been returned to workers.
In her closing paragraph, Justice Kagan warns, “Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last.”
Let’s hope it is not.