Freedom Foundation

SCOTUS Wars: A New Beginning

Much has been said in recent months about the conclusions reached by Justice Alito in Janus v. AFSCME. Yet, Janus should come as no surprise to the casual legal observer. Since the Supreme Court’s erroneous decision in Abood v. Detroit Board of Education, the Court has incrementally reversed its faulty and legally dubious conclusion: the notion that the government and unions may garnish wages from non-union members as a means for the unions’ statutory privilege of representing employees.

While labor unions will undoubtedly seek to limit the scope of Justice Alito’s decision, the fact remains that Abood has always hinged on a flawed analysis.

Yet, many labor activists see the Court’s shift on the issue as the result of corporate America’s crusade against government workers. This article seeks to dispel that myth and provide a complete and concrete analysis of what led the Roberts Court to so effectively eradicate this “anomaly” of First Amendment jurisprudence.

The article will begin with a brief history and overview of agency-fees and collective bargaining, culminating in Abood and its progeny. Part II will discuss Janus, analyzing the arguments from both the dissenting non-members and the unions and will discuss the Court’s correct decision to eliminate agency fees and the dubious opt-out requirement. Lastly, Part III will briefly look to the future in a post-Janus era.

And in the words of Justice Alito, “Abood was wrongly decided and is now overruled.”