Janus v. AFSCME Council 31: The Supreme Court Overrules State Decision-Making in Public Unions - Articles

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Posted by: Caraline Rickard on Aug 6, 2018

In a term full of paradigm-shifting 5-4 decisions, the U.S. Supreme Court issued its latest example on June 27 in Janus v. AFSCME Council 31,[1] overturning Abood v. Detroit Board of Education,[2]which has shaped public labor unions for 41 years. 

Both Abood and Janus concern the exclusive representative designation of state employee unions. Under Abood, states were permitted (but not required) to designate a state employee union of sufficient size the “exclusive representative” of all state employees, including non-members. These unions were given the exclusive right to bargain with the state on behalf of all state employees. In Abood, the Court determined that, in order to compensate the union for advocating on behalf of all employees, non-union members could be (but did not have to be) required to pay the portion of union dues that went toward collective bargaining. However, they could not be compelled to pay the portion of dues that went toward political and ideological action. 

In Abood, the Burger Court issued an essentially unanimous, bipartisan opinion that “[o]ur province is not to judge the wisdom of Michigan’s decision to authorize the agency shop in public employment. Rather, it is to adjudicate the constitutionality of that decision.”[3] The Court determined states were in the best position to determine what kind of labor arrangement, if any, was best for its employees. The only point of contention was what impact these arrangements had on public employee’s First Amendment rights: while still concurring in judgment, Justice Powell and two other justices expressed this concern. In his majority opinion, Justice Stewart—who gave perhaps the most well-known pronouncement of First Amendment law in American history when he said of obscenity, “I know it when I see it”—drew the First-Amendment line between political and collective-bargaining expenses, holding that non-union members could be compelled to pay fees for the latter but not the former. For the last 41 years, the Abooddecision has been seen as an example of judicial restraint, with the Court carefully weighing interests to balance rights, without interfering unnecessarily with individual states’ decision-making. 

In Janus, the Roberts Court essentially called this weighing foolish,instead holding while public unions can still be designated exclusive representatives and required to undertake collective bargaining, non-union members cannot be compelled to pay for that collective bargaining. Three features of Justice Alito’s majority opinion are especially noteworthy. 

First, Justice Alito takes a sweeping view of the First Amendment. According to Justice Alito, requiring non-union members to subsidize union speech—even speech that is undertaken for the employee’s benefit—is compelled speech. In contradiction to most compelled speech jurisprudence, which generally is less concerned about compelled speech than speech suppression,[4] Justice Alito says “measures compelling speech are at least as threatening” as suppression.[5] Still, he adopts “exacting scrutiny,” a level of constitutional scrutiny below strict but above intermediate scrutiny, to evaluate the speech at issue.[6] This is a surprisingly high standard for this legal context. Mr. Janus was not speaking at all; rather, he was indirectly contributing to third-party action that was intended to benefit him (though he disagreed with it). This fits in with the Roberts Court’s pattern of, as the dissent put it, “weaponizing the First Amendment”[7]—that is, taking an increasingly broad view of what constitutes speech in order to strike down legislation.[8]  

Second, and perhaps most noteworthy, Justice Alito and the majority are remarkably willing to ignore stare decisis in overturning a 41-year-old precedent, including the decades-old legislative decisions of nearly half the states. To support this reversal, Justice Alito lists cases that criticize Abood, nearly all of which were issued by the present Court. In other words, the majority essentially argues Aboodcan be overturned because they (the same justices) have also disagreed with it before.[9]

In addition to explicitly overturning AboodJanus also casts doubt on a number of other long-standing positions, including questioning the applicability of Pickering v. Board of Education,[10] with the Court signaling first that policies that affect more than one employee’s speech rights are entitled to more scrutiny and later that Pickering may not apply at all in compelled speech cases.[11] The Court also signals its potential willingness to take a second look at areas whose firm standing could not have been questioned before Janus, perhaps most shockingly the statement towards the end of the majority opinion, “We have no occasion here to reconsider our political patronage decisions,” a phrase that nearly always begs for such an occasion.[12] In a compelling dissent, Justice Kagan pushes back on the majority’s willingness to legislate from the bench, overruling state decision-making, and seeming lack of concern for the principle of stare decisis. 

Third, and most notably for labor and employment practitioners, Justice Alito’s majority opinion sends a number of confusing signals about the future of labor law. There is a surprising argument[13] about the hardships of individual mandatory arbitration,[14] perhaps signaling weakness in the Court’s hardline arbitration stance. The Court applies the “exacting scrutiny” standard it takes from other labor cases, setting up a string of precedent applying this level of scrutiny to labor and employment cases involving questions of free speech.[15] As discussed above, the continuing viability of Pickeringmust be questioned after Janus

Finally, and perhaps most importantly of all, Janus’s has undoubtedly created a First Amendment carve-out for union membership, providing protection that vastly outstrips other First Amendment employment protections. Noting that unions often speak on political matters of public importance, Justice Alito explicitly says, “We have recognized that such speech ‘occupies the highest rung of the hierarchy of First Amendment values’ and merits ‘special protection.’”[16] This protection must go both ways, protecting both non-members and members alike. So, for example, what would courts do with a case where a pro-union plaintiff claims a state employer’s vocal “right to work” stance is compelled anti-union speech?[17] Perhaps recognizing how sweeping his language is, Justice Alito ends a footnote that begins, “[U]nder common law, collective bargaining was unlawful” with the assurance, “[W]e are not in any way questioning the foundations of modern labor law.”[18] However, it can be of slim comfort to labor representatives—the Court doth protest too much. 

Because Tennessee’s state employee association is not an exclusive representative (and not even technically a “union”), Janus’s holding does not have a direct effect. However, it follows many trend lines of the Roberts Court, lines which are likely to become trenches when, and if, Judge Brett Kavanaugh joins the Court. These include an unusual willingness to overturn well-established Supreme Court precedents, an ever-expanding view of the First Amendment, and a marked hostility toward labor rights. Still, Janus’s strong language may have unexpected benefits for labor plaintiffs, who may be able to argue that the strong protections apply forunions as well as against them.


Caraline Rickard is an associate attorney at Gilbert Russell McWherter Scott & Bobbitt, in their Franklin office. She received her law degree from Vanderbilt Law School in 2015. She concentrates her practice on labor and employment law, with other work in special education law. Caraline may be reached at 615-354-1144 or crickard@gilbertfirm.com.


[1]          585 U.S. ___ (2018), 138 S. Ct. 2448.

[2]          431 U.S. 209 (1977).

[3]          Abood, 431 U.S. at 225.

[4]          Seee.g.Johanns v. Livestock Marketing Assoc., 544 U.S. 550 (2005) (unanimously upholding mandatory contributions to advertising fund by cattle producers against First Amendment challenge) (Scalia, J.). 

[5]          Janus, 585 U.S. at ___ (slip op., at 8). 

[6]          Id. (slip op., at 10).

[7]          Id. (dissent, at 26) (Kagan, J., dissenting). 

[8]          Seee.g.Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., 584 U.S. ___ (2018); Citizens United v. FEC, 558 U.S. 310 (2010).

[9]          Id. (slip op., at 33-34) (citing Knox v. SEIU, 567 U.S. 298 (2012); Harris v. Quinn, 573 U.S. ___ (2014); Citizens United v. FEC, 558 U.S. 310 (2010) (Alito, J.)).

[10]        391 U.S. 563 (1968) (establishing the private speech on public concern framework for First Amendment challenges by public employees).

[11]        Janus, 585 U.S. at ___ (slip op., at 24-25). 

[12]        Id. (slip op., at 44).

[13]        “Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability determinations . . . . The Union respondent argues that challenging its chargeability determinations is not burdensome because the Union pays for the costs of arbitration, but objectors must still pay for the attorneys and experts needed to mount a serious challenge. And the attorney’s fees incurred in such a proceeding can be substantial. The Union respondent’s suggestion that an objector could obtain adequate review without even showing up at an arbitration is therefore farfetched.” Janus, 585 U.S. at ___ (slip op., at 41) (citations omitted).

[14]        The majority in Janusin identical to the majority in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018), which upheld class action waivers in employee arbitration agreements in May.

[15]        Janus, 585 U.S. at ___ (slip op., at 10-11). 

[16]        Id. (slip op., at 31).

[17]        Justice Kagan’s dissent argues that when this time comes, “[W]e will discover that today’s majority has crafted a ‘unions only’ carve-out to our employee-speech law.” 

[18]        Janus, 585 U.S. at ___ (slip op., at 21 n. 7).