Supreme Court ‘weaponizes’ First Amendment to attack public-sector workers

In a 5-4 decision along party lines, the U.S. Supreme Court today altered the landscape of public-sector collective bargaining in Minnesota and more than 20 other states.

The high court’s ruling in Janus v. AFSCME makes “right-to-work” the law of the land in all public-sector workplaces, opening the door for more workers to reap the benefits of a union contract without sharing in its costs.

Justice Samuel Alito, writing for the majority, argued that states like Minnesota, which allowed public-sector unions to assess “fair-share fees” to non-members, violated those workers’ First Amendment rights to freedom of speech – or, in this case, freedom not to subsidize speech on their behalf.

Alito’s decision overturns a precedent more than four decades in the making, and it gives corporate interests and billionaires who bankrolled the legal challenge a victory for which they had been angling for years.

Union leaders in Minnesota warned the decision would make it harder for working people to join together and advocate for their families and communities, rigging the economy even more in favor of corporations and the wealthy.

Working people rally in Minneapolis, pledging to stick together in the wake of today’s Janus v. AFSCME ruling.

But Minnesota AFL-CIO President Bill McCarthy, the state’s top labor leader, said working people aren’t giving up their voice.

“No court decision will ever stop working people from joining together in union to negotiate a fair return on their work,” he said. “No matter how many roadblocks corporate special interests put in our path, our state’s labor movement will continue to fight for working Minnesotans’ freedom to prosper.”

Public-sector unions have been bracing for a major blow from the Supreme Court for more than two years. During that time, most have taken steps to strengthen their membership and encourage as many fee-payers to become full members as they can.

Janus is the third in a string of decisions weakening public workers’ bargaining power on First Amendment grounds, and Alito has been a driving force behind all three. His arguments in today’s decision are at times nakedly political, blaming collective bargaining for some states’ underfunded public pension systems and the growth of government spending nationwide.

Alito’s decision also draws a disturbingly shallow parallel between public-sector unions and other advocacy organizations that purport to “speak” on behalf of a unique constituency, like the AARP and the VFW. Alito asks: “Could the government require that all seniors, veterans, doctors pay for that service even if they object?”

The point Alito either ignores or misses is that the VFW can offer unique benefits to people who join, while unions are required by federal labor law to provide the same contractual benefits and representation to everyone in a bargaining unit — even workers who choose not to join.

In her dissenting opinion, Justice Elena Kagan accuses Alito and his fellow conservatives on the bench of waging a “6-year crusade to ban (fair-share) fees,” with disregard for precedent the high court has “rarely if ever” seen.

“Unions are — by law — in a different position, as this Court has long recognized” than other advocacy groups, Kagan writes. Fair-share fees “ensured that a union would receive sufficient funds, despite its legally imposed disability, to effectively carry out its duties as exclusive representative of the government’s employees.”

Kagan’s dissent points to equally troubling decisions ahead if the conservative majority continues, in her pointed language, “weaponizing the First Amendment.” She writes:

“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to pro­tect democratic governance — including over the role of public-sector unions.”

Time will tell how Janus impacts public-sector unions in Minnesota. But a string of wildcat strikes by teachers in West Virginia, Arizona, and other right-to-work states this spring prompted some to wonder if the deep-pocketed donors behind Janus are poised to wake a sleeping giant.

“Neither this ruling nor the right-wing groups that will weaponize it, will silence the voices of Minnesota’s professional educators,” Education Minnesota President Denise Specht said. “We will still stand for effective and welcoming schools for our students, proud and healthy communities for their parents, and salaries and benefits that will sustain the families of Minnesota educators.”