Like Janus–the Roman god with two faces–the Supreme Court case Janus vs. American Federation of State, County, and Municipal Employees (AFSCME) is a case with two possible outcomes: the end of labor unions, or their redemption. While the strength of American unions has undeniably declined in the last decades, the decision in Janus could be the final nail in their collective coffin.
At the center of Janus is the question of fair-share fees, which many unions charge to non-members who do not pay dues but still substantially benefit from activities like collective bargaining and increased salaries. Currently, they are constitutionally protected under the 1977 decision Abood vs. Detroit Board of Education with the understanding that the money collected cannot finance lobbying or other political activities; however, Mark Janus aims to change that. Janus argues that it is impossible to separate union activities from political activities, and therefore fair-share fees by public sector unions, because they are inherently governmental, constitute compelled speech, and violate the First Amendment. Of course, Janus is much bigger than Janus himself, sitting upon decades of precedent and reaching across party lines to reroute the path of history.
The currently conservative-leaning Court, after hearing arguments on February 27th, appeared poised to cut-off fair-share fees. The ramifications of that likely decision would be to restrict labor union power and hasten their seemingly inevitable end. After all, union membership has declined by almost 50% since the 1980s. Contrary to popular belief, however, this downturn does not follow historical, cultural, or economic logic, and it is not at all inevitable. Across the United States, bipartisan public support for labor unions is increasing, at 61%, its highest since 2003. While Democrats have uniformly supported organized labor, in 2017, 55% of young and moderate Republicans had favorable opinions, too; this indicates the potential for union strength in the future, as they hold a clear foothold in the political ethos of younger generations. Importantly, this is not passive support. More and more Americans also desire visible union influence on politics. In 2015, 36% of Americans favored increased power and 34% favored decreased power. Just two years later, that divide widened significantly, with 39% favoring increased power and only 28% not. Historically, that growth makes sense. After the Great Depression, public opinion of labor unions boomed, exemplified in the passing of the Wagner Act. Now, at a time of increasingly unequal distribution of wealth and subsequent need for grassroots action, public opinion is on the rise once again, and unions could be poised to make a come-back. Most recently, the overwhelming success and nationwide inspiration of the West Virginia teachers’ strike demonstrates this phenomenon. However, membership in labor unions is still falling despite the logical trajectory.
A common explanation for the decrease in union membership is the rise of technology and globalization. Although mechanization has led to a diminishing number of jobs in private sector industries such as coal and car manufacturing, it does not take into account public sector industries. The public sector workforce includes all government employees, teachers, bus drivers, police, and more. Today, that workforce accounts for six times more unionized jobs than the private sector. Therefore, the question remains: why is membership shrinking even in industries not negatively affected by technology? The answer points to factors other than mechanization. Moreover, other globalized Western countries have both high rates of production and high rates of unionization. Germany, for instance, has one of the most advanced labor markets in the world because of, not in spite of, collective bargaining. With that in mind, it becomes hard to justify the argument that unions hurt growth or the myth that technology was the end of unions. And yet, even with noticeably higher approval ratings, cultural desire for equality, and positive international and historical trends, 46% of Americans have a bleak outlook on the future of organized labor.
The reason for such pessimism comes back to Janus–the latest, and possibly final, case brought to the Supreme Court targeting fair-share fees. It is important to note that the attacks on fair-share fees are disproportionate to their controversiality. The amicus brief submitted on behalf of AFSCME–the union in question–is a bipartisan document in support of the fees, written by economists, lawyers, and no less than three Nobel Prize winners. However, for decades now, anti-union groups have been attempting to overturn Abood as part of an effort to shut labor unions down. The economic legal approach makes sense given the factors outlined above showing that unions don’t seem to be going away by themselves. Financially, unions are the most vulnerable. Overturning Abood would unquestionably be a huge blow, arguably “the most significant impact on workers’ freedom to organize and bargain collectively in 70 years.” While it’s difficult to know exactly what the impact will be, the classic economic free rider model can provide answers. Because unions bargain contracts for more than just their members, without fair-share fees, fewer people would pay dues when they could get the same benefits without any penalty. Richard Freeman, an economics professor at Harvard, argues that when that occurs, the unions will undoubtedly get weaker, and that even if they are able to survive that loss in membership, American unions will look very different.
The assault on fair-share fees has been relentless, with three Supreme Court cases in the last five years, and targeted right-to-work legislation at the state level. In the lead up to Janus, an Economic Policy Institute (EPI) report detailed extensive research into the three most recent Supreme Court cases on fair-share fees, analyzing the donor organizations supporting anti-union litigants. It stated directly that “challenging fair share fees in the courts appears to be part of a broader billionaire-financed agenda to weaken unions and shift power away from ordinary workers.” This rather strong assertion is reinforced by the inverse relationship between support for unions and attacks on them. Based on the political leanings of the current Justices, Janus is expected to swing in the direction of anti-union groups. In doing so, Janus could negate the budding possibility of a union comeback in the United States by opening the free rider floodgates and draining unions of crucial resources.
The high public opinion of unions was evident during arguments, with supporters rallying around the steps of the Supreme Court to show their support. Of course, the case hasn’t yet been decided; the fact Justice Gorsuch was silent even leaves some ambiguity as to which way he will vote. While the last fair-share fee case was tied 4-4 after the death of Justice Scalia, giving unions a quick reprieve, no such tie is possible with Gorsuch on the bench. Thus, it is unlikely that either side will get another chance after Janus. This decision will have a lasting impact on the ability of unions to function, because without funds, public support, historic trends, international comparisons, and cultural affability can only go so far.