Wednesday, January 24, 2018

Public Sector Union Dues, Precedent, and the Rule of Law

By Eric Segall

In Janus v. AFMSCE, the Supreme is revisiting the issue whether state laws requiring all public sector employees to pay union dues violates the First Amendment. Some state employees who don’t want to join unions argue that these dues fund ideological speech with which they disagree. Therefore, they contend that state laws requiring them to pay the fees against their will violate their right to free speech. The states’ counter-argument is public-sector union activities redound to the benefit of all state employees and, in any event, non-consenting employees may engage in as much counter-speech as they want against the union’s activities, so their first amendment rights are not abridged.

In Abood v. Detroit Board of Education, decided in 1977, a unanimous Supreme Court held that imposing mandatory fees on state employees does not violate the First Amendment if the fees are used by the union for collective bargaining purposes related to workplace issues and conditions, not political causes. Abood and later cases also allow unions to collect additional money for so-called "ideological" activities so long as workers who are part of the bargaining unit but not the union are not required to contribute to these non-bargaining funds. A few years ago, the Court limited Abood’s reach in a case involving quasi-state workers who provide end-of-life-care in the home, and the conservatives Justices made clear their desire to reverse Abood in an appropriate case. These Justices seemed to be sympathetic to the argument, rejected in Abood, that all public-sector employer-union bargaining raises ideological issues. 

The Court granted certiorari the next year in a similar case, but after Justice Scalia passed away, and the Court deadlocked 4-4, which meant the lower court decision applying Abood was affirmed. This Term the Justices granted certiorai in Janus to decide whether Abood should be overturned and mandatory public sector union fees be held unconstitutional.

The stakes in this case for pubic sector workers and federalism are substantial. Unions use these mandatory fees to collectively bargain for higher wages and better working conditions for all workers, whether or not a non-consenting employee joins the union. Also, the state knows that it only has to negotiate with the officially designated representative of all the workers. Twenty-three states and the District of Columbia impose such fees for these and other reasons.

On the other hand, many states do not require non-union members to pay mandatory fees for many reasons, and at least one amicus brief  in Janus, suggests that preventing states from imposing these fees will not materially impair public sector unions. Moreover, although I do not think that significant first amendment interests are at stake because of the imposition of these fees, and neither do conservative first amendment experts Eugene Volokh and Will Baude, many other scholars argue that requiring state workers to support unions does makes them subsidize speech with which they disagree.

But the issue for this post has to do mostly with the Supreme Court following precedent and the rule of law.  The Court is not supposed to overrule prior cases just because the values and politics of the current Justices are different than those of the Justices who decided the case in question. One aspect of the rule of law is that similarly situated people will be treated by similarly by the courts.
As Michael Kimberly recently noted for SCOTUSBlog, “concluding that a prior decision may be wrong — even one that interprets the Constitution — is not enough to justify overruling it. Instead, the Supreme Court must find what it has called a ‘special justification’ to overcome the presumption in favor of upholding precedent.”

Kimberly also observed that in most cases over the last  fifty years in which a constitutional case has been overruled,
the court has been unanimous or nearly unanimous, with two or fewer justices in dissent. This makes sense because the justices should be open to overruling precedent only when the error in a prior opinion speaks for itself and is beyond serious dispute — and unanimity is a reflection of such circumstances. Overruling precedent when the correctness of the prior opinion is a close call raises doubts, in other words, about whether it is principles or politics that underlie the court’s decisions.
In Planned Parenthood v. Caseyin which the Court affirmed in part Roe v. Wade, the lead opinion (which was a majority on these points) devoted significant attention to the rules concerning when the Court will or will not overturn prior cases. The Justices identified four factors the Court would use in the normal, non-landmark decision type context. These four factors are: 1) whether the old rule has proven impracticable; 2) whether the rule has engendered substantial reliance such that overturning it would cause harm; 3) whether new rules of law have made the old rule nothing more than the remnant of discarded doctrine; and 4) whether the facts have changed so much as to rob the old rule of significant justification. These factors, in theory, are meant to distinguish those cases where rule of law concerns suggest there are reasons to overturn a prior case separate from the mere fact that the the Justices' politics and values have changed.

If the Justices take these factors seriously, it is obvious that Abood should not be overturned. The rule of Abood, while possibly causing some non-union public sector employees anger that they have to support unions against their will, has not proven impracticable or unworkable. Roughly half the states require dues from non-union members and half do not, and there is no evidence that there are labor problems that need to be addressed in the states that require employees to pay the dues.

As far as reliance is concerned, as Kimberly points out, in the 23 states and the District of Columbia that require such dues, the entire collective bargaining mechanism between state governments and their workers would have to be restructured if the Court overturns Abood. This reliance factor militates strongly in favor of not overturning Abood given the large number of states that have relied on the decision for forty years.

As to the third factor, although the Roberts Court might be more aggressive than the 1977 Court in enforcing first amendment rights, the legal doctrine surrounding the government as employer has not changed in any way that suggests the Abood rule is now just a "remnant" of discarded doctrine. In a number of cases since 1977, the Court has emphasized that the free speech rules surrounding the government as employer are much different from the rules applicable to the government as a regulator of private speech. Similarly, there have been no changes in facts or the working relationships between public sector employees and the states that would suggest the Abood decision is no longer justified.

As to the merits of the Abood rule in the first place, an issue the Court really shouldn't reach, I will just say that federalism should require that the states have the right to choose whether or not to require these union dues. There is nothing in the original meaning of the first amendment suggesting that states do not have the right to require the dues, and as a policy matter, the non-consenting employees have an infinite number of ways to express their disagreement with the collective bargaining activities of their unions. Whether it is fair or not to require non-union employees to pay the dues is not the issue before the Court (that question is up to each state). The question is simply whether their free speech rights are being unconstitutionally abridged. As Abood originally held, the answer to that question is no, because the employees are not being forced to say anything against their will, nor is their speech being limited in any way by the government. They are simply paying for a service that redounds to their benefit as public sector employees.

If the Justices were to take their prior rules regarding precedent (and federalism interests) seriously, they would not overturn Abood. Yet, most commentators are predicting that the Justices will do exactly that for a variety of reasons, including the conservative Justices' dislike of strong unions. If  the commentators are right, it will demonstrate yet again that the values and politics of the Justices trump their alleged commitments to legal principles and the rule of law. Moreover, if the Justices overturn Abood, it will be because Justice Gorsuch, not Judge Garland, now sits on the Court, not because the first amendment forbids states from making the decision to require all public sector employees to financially support the unions that represent their best interests.