- - Tuesday, March 6, 2018


The Supreme Court has a welcome opportunity at hand to strike a blow for the First Amendment. The court has heard oral arguments in Janus v. AFSCME, a case challenging the constitutionality of requiring government employees to pay an “agency fee” to a union representing them, even if they don’t want to join or support a union.

This should be an easy call. A fair reading of Thomas Jefferson’s observation demonstrates the only accurate reading of the Constitution. “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves,” Mr. Jefferson observed, “is sinful and tyrannical.”

Mark Janus, a social worker in Illinois, is asking to be spared paying dues to the American Federation of State, County and Municipal Employees because he does not want his money to contribute to the union’s slush fund to lobby for liberal political candidates and causes that he may not support.

A ruling in favor of Mr. Janus would overturn the court’s 1977 decision in Abood v. Detroit Board of Education, which upheld union shops in public workplaces. The justices ruled unanimously in Abood that non-members could be assessed these agency fees to cover the costs of “collective bargaining, contract administration, and grievance adjustment purposes.” Even those justices held that objectors to union membership or policy may not have their dues used for other ideological or political purposes.

This sounds more Solomonic — splitting the baby — than it actually is. The unions happily embraced the part of the decision upholding agency fees, but have disregarded the caution about the rest of the decision. Money, after all, is fungible. So the issue is back before the Supreme Court.

Justice Anthony Kennedy, often the swing justice in deciding polarizing cases like this one, came out swinging in oral arguments. He connected the dots between union dues and empowering advocacy of big government. He even prompted the union lawyer to concede that a ruling against the unions would cause them to have “less political influence.” The unions think they’re entitled to every worker’s dues to protect that influence.

Justice Samuel Alito observed that the government can restrict what its employees can say, but can’t compel them to say, through the use of their dues, something they don’t want to say.

The predictably liberal justices could only invoke the legal doctrine called “stare decisis,” or “let the decision stand.” This was not an impressive argument. These same liberal justices, who no doubt call themselves “progressives” now, had no such qualms when they ignored stare decisis and overturned 2,500 years of law, custom, usage, practice and precedent three years ago in imposing something called same-sex marriage by judicial fiat.

We’re pretty sure that none of the liberal justices would have invoked stare decisis or precedent to defend Plessy v. Ferguson in arguments against “separate but equal” schools in Brown v. Board of Education in 1954. Yet the questions and comments from the liberal justices were little more than advocacy of “outcome-based adjudication,” wholly divorced from the issue of compelled speech which is central to the case.

Justice Elena Kagan worried that 23 states, the District of Columbia and Puerto Rico “all would have their statutes declared unconstitutional at once … Thousands of municipalities would have contracts invalidated.” (Yes, that’s how it works.) Justice Kagan had no such concern with overturning the marriage laws of three-quarters of the 50 states in the same-sex marriage case.

Justice Sonya Sotomayor told the lawyer from the National Right to Work Legal Defense Fund, representing Mr. Janus, “You’re basically arguing, ‘Do away with unions’.” Justice Ruth Bader Ginsburg, to no one’s surprise, agreed. Disallowing agency fees would drain its resources, she remarked, leaving it at a competitive disadvantage in collective bargaining.

The unions and their friends at court regard the prospect of a decision in favor of Mr. Janus as a catastrophic threat to organized labor. However, such a decision would not affect private-sector unions. They would still be able to extract dues from dissenters in 23 states where workers have no right to work, and to spend as much as they want on promoting politics and views that might seem wicked to many of their members.

Speculating on how the high court may rule on the basis of an hour’s oral arguments is a fool’s game. But faithfulness to the Constitution should be more important to the justices than the state of a union’s treasury. Protecting the First Amendment is the particular responsibility of the nine justices of the U.S. Supreme Court.

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