Analysis

Kagan’s Fiery Dissent Says Supreme Court Majority Creates ‘Problem of Nightmarish Proportions’ for Nation’s Public Unions

By Andrew Brownstein | June 27, 2018

U.S. Supreme Court Associate Justice Elena Kagan. (Saul Loeb/AFP/Getty Images)

In a scathing dissent to the U.S. Supreme Court’s Janus v. AFSCME decision forbidding government workers from being forced to pay for collective bargaining, Justice Elena Kagan noted with some understatement a reality that teachers unions have long known and feared: The 5-4 ruling, she said, will “have large-scale consequences.”

“Public employee unions will lose a secure source of financial support,” she wrote. “State and local governments … 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.”

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In the “predictable” camp: Unions will undoubtedly lose membership, funding, and, therefore, influence. A recent University of Illinois study estimated that public-sector unions could lose more than 700,000 members as a result of the ruling. In the majority opinion, the court established the equivalent of a right-to-work model for public workers all over the U.S. Undoing 41 years of precedent, the likely result is that many teachers who are now content to pay for union membership will think of their wallets first and opt not to.

Less clear, according to Kagan, is how the more than 20 states that currently authorize such fair-share provisions will deal with suddenly having to “come up with new ways — elaborated in new statutes — to structure relations between government employers and their workers.” The ruling affects thousands of current contracts covering millions of workers. Kagan, born and raised in Manhattan, noted that New York City alone has agreed to agency fees in 144 contracts with 97 public-sector unions. The court acted, she wrote, “with no real clue of what will happen next — of how its action will alter public-sector labor relations.”

In what is perhaps the dissent’s most acid passage, Kagan took direct aim at the conservative majority’s oft-espoused embrace of precedent and the right of states to manage their own affairs.

“The majority’s road runs long,” she wrote. “And at every stop are black-robed rulers overriding citizens’ choices.”

The majority, she said, “wanted to pick the winning side in what should be — and until now, has been — an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades — in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 states were on one side, 28 on the other (ignoring a couple of in-betweeners).”

“Today,” she concluded, “that healthy — that democratic — debate ends.”

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Four Key Points From Justice Samuel Alito’s Far-Reaching Janus Decision That Overturns 41-Year-Old Precedent on Agency Fees

Justice Samuel Alito, writing for the majority, dug in more deeply than recent court precedent, harking back to the nation’s founding documents and the First Amendment’s guarantee of the right of free association.

“When speech is compelled … additional damage is done,” Alito wrote. “In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning…”

People like Mark Janus, the Illinois child support specialist at the heart of matter, are often described as “free riders” by union activists because they may reap the benefits of union bargaining without having to pay for it. But Janus, in Alito’s words, “argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”

Interestingly, the fiery matchup between Kagan and Alito pitted two justices born into families of teachers. Kagan’s mother taught at Hunter College Elementary School, and she has two brothers who teach at public schools. Alito’s father was a high school teacher and his mother is a retired schoolteacher.

Although Janus himself is not an educator, the case that bears his name largely wrestled with a precedent that grew out of tensions in the nation’s public schools. The case overturned Wednesday is Abood v. Detroit Board of Education, in which the 1977 Supreme Court ruled in favor of the Motor City’s teachers union over public school teachers who objected to paying union dues for collective bargaining. Abood acknowledged the rights of workers not to join the union and not to finance disagreeable political behavior. But given that unions have a legal duty to represent everyone equally, the court aimed to thwart the free-rider problem by allowing unions to compel dues.

In his ruling, Alito led the conservative wing of the court in giving short shrift to the notion that the loss of such fees poses an existential threat to unions. While acknowledging unions could “experience unpleasant transition costs in the short term,” he said such discomfort must be weighed against “the considerable windfall that unions have received … for the past 41 years.”

Kagan and her liberal colleagues disagreed. She wrote that the court’s decision “creates a collective action problem of nightmarish proportions.”

“There is no sugarcoating today’s opinion,” she wrote. “The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. 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.”

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