I wrote recently about the Court’s ruling on Janus v AFCME Council 31, which eliminated public service unions’ ability to collect “agency fees” from non union members.

The dissent by Justice Elena Kagan and joined by her three cohorts in the Court’s liberal wing is instructive, and it foreshadows the kind of government we can expect from today’s “liberals,” should they succeed in gaining control of one or both Houses of Congress and then of the White House.

Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.

Because unions are entitled to OPM for their financial support.  Because governments will be temporarily inconvenienced in their role as employers.  Because employment relationships must never be disrupted or altered.  It’s settled.

And

The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years.

By this logic, Kagan would argue that Plessy v Ferguson, which created the racism of separate-but-equal in our schools (among other places), never should have been rejected by Brown v Board of Education of Topeka, because the latter came 60 years after Plessy had become “entrenched in this Nation’s law—and in its economic life.”

And these [citations omitted]:

And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

 

Every one of them will now need to come up with new ways—elaborated in new statutes—to structure relations between government employers and their workers.

 

Still more, thousands of current contracts covering millions of workers provide for agency fees. Usually, this Court recognizes that “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.”  It prevents the parties from fulfilling other commitments they have made based on those agreements. It forces the parties—immediately—to renegotiate once-settled terms and create new tradeoffs.

This is an especially dangerous principle of the Left: that the convenience of Government is more important, and should have precedence over, individual liberty.  That forced static-ness is better than the freewheeling interactions of free men and women dealing with each other (and their employers from time to time) according to their own imperatives rather than Government diktat.  (Aside: Kagan also cynically overstated the immediacy of renegotiations.  No such thing is mandated; those contracts will expire on their own and can be renegotiated at that time—as has been the case in Wisconsin.)

And: that it’s somehow wrong that judges should be “unleashed” to uphold our basic, inherent in our very existence, liberties.  It’s not the Conservative wing of the Court that has sought to weaponize the 1^st Amendment by insisting that free speech and free association are what Government says they are.

The ruling, with Kagan’s dissent, can be seen here.

Resoundingly so.  Janus v AFCME Council 31 is a case originating in Illinois concerning a public service union’s ability to collect a per centage of ordinary union dues—agency fees—from non-union members who work alongside the union’s bargaining unit in for a government agency.  A 40-year-old Supreme Court precedent, Abood v Detroit Board of Education, upheld this ability.

The Court’s opinion (a 5-4 majority) is summarized in the syllabus:

The State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled.

What Alito actually wrote is even more direct, and he wrote it at the outset of his opinion.

Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.

We upheld a similar law in Abood v Detroit Bd. of Ed….and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned.  …  Abood is therefore overruled.

Alito concluded his opinion even more forcefully.

This procedure [collecting an “agency fee”] violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.

The sad part of this resounding victory for individual liberty is that 5-4 vote; it should have been unanimous.  However, the liberal wing of the Court remained buried in its ideology that Government must be the solution.  Here, those four Justices held that an individual’s fundamental rights of free speech and free association must be held subordinate to the union’s government-created right to collect dues and “agency fees” from everyone whom it purports to represent in an employment unit.

The free speech problem arises when those agency fees are collected as a condition of employment by a government agency.  It isn’t possible for an inherently political entity to not engage in political speech, and so it isn’t possible for any negotiation—including over employment parameters—with that entity to not be inherently political in nature and so consisting of political speech.  Thus, forcing payment of an “agency fee” to the “representing” union is forced speech by the individual from whom the “agency fee” is collected.

The free association problem arises from the existence of any forced “agency fee” payment.  Such a mandate creates a forced association between the individual from whom the “agency fee” is collected and the union for and by which the money is collected.  This association occurs, tautologically, whether or not the individual might otherwise consent to, or actively seek, the association.  The forced nature of the association is maximally emphasized by the individual’s demonstrated objection to the association through his conscious decision to not join the union and further by his objection to paying the fee.

It’s unfortunate that the liberal wing does not see any of this.

The ruling can be seen here.