court case

Janus v. American Federation: Labor Rights Within the Legal-Political Paradigm

March 12, 2019 | Patty Zhang

Edited by: Lyle Carrera

Once a vibrant force that rallied together hundreds of thousands of workers, the labor movement has steadily declined over the past few decades. Fifty years ago, 1 in 3 workers were part of a union, compared to only 1 in 10 today.[1] But declining membership isn’t the only problem that unions face. Since 2010, six states have passed right-to-work laws, which prohibit public sector unions from charging non-member employees, even if those employees benefit from collective bargaining.[2] This trend shows no sign of reversing, especially as “the war on labor” becomes an increasingly politicized issue. Since the early 20th century, organized labor has been central to the Democratic Party in terms of winning elections.[3] On the other side of the spectrum, Republicans have an incentive to weaken unions given doing so benefits their electoral prospects. Right-to-work laws are one such method—having decreased the Democratic share of votes by 3.5%. As such, it is no coincidence that the six states who passed right-to-work laws were dominated by Republican legislatures.[4]

But nowhere is the partisan divide on labor rights more evident than in the Supreme Court. In 2016, the Court ruled on following Friedrichs v. California Teachers Association, a case that dealt with whether public sector unions could charge “agency fees,” or payment from non-member employees. Most observers initially predicted the Court would rule 5-4 in favor of right-to-work laws given its conservative and anti-labor five-member majority.[5] However, Justice Antonin Scalia’s death left the Court evenly split among liberals and conservatives, resulting in a 4-4 tie on Friedrichs. This ruling gave unions a brief respite, but not for long. Two years later, President Donald Trump appointed Judge Neil Gorsuch to fill Scalia’s vacancy, thus tipping the scales back towards a conservative majority. And, as before, that partisan divide determined the outcome of the next labor rights case. In Janus v. American Federation, the judges once again ruled along party lines, this time producing a 5-4 decision that upheld right-to-work laws.[6]The Court determined that charging non-members violated the First Amendment, because it forced those individuals to support the union, even if they disagreed with its ideas. As Justice Samuel Alito argued in his opinion, “measures compelling speech are at least as threatening” as those restricting speech.[7]

Janus marked a shift in the Supreme Court’s political balance, but that was to be expected. Throughout history, presidents have typically chosen nominees with similar political views, and for the most part, there was no doubt that Trump would follow this pattern. What was different, however, was the Court’s willingness to exploit this shift in power to disregard precedent and destroy labor unions.

The Court’s ruling in Janus demonstrated a dangerous and growing tendency to put partisan gain above the law. The decision overturned the 40 years of precedent that had been established by Abood v. Detroit Board of Education, which ruled that agency fees were constitutional. Overturning cases itself is not an anomaly—in fact, most overturns have historically occurred after the lawmaking majority changed; that is, after power has shifted between parties.[8] But this is not the case with Abood and Janus, which were both decided on by conservative majorities. The reason for this overturn is not transfer of power, but a broader trend of polarization. When Abood was decided in 1977, parties were ideologically diverse, with members across the political spectrum. But since the 1970s, polarization has increased, resulting in more homogeneity and teamsmanship.[9] In such a system, voters and party officials tend to side with their party, and judges are not exempt to this behavior. The seven conservative justices in Abood supported unions despite their personal beliefs, as they prioritized the law over politics in their decision.[10] Similarly, in Janus, Justice Stephen Breyer encouraged his colleagues to put politics aside. He proposed narrowing the focus of Abood instead of overturning it, so that the non-member fees would only be used for collective bargaining activities.[11] In this way, it would not compel speech, as non-members would not be supporting the union’s ideological activities, only its bargaining. Other justices, however, rejected this compromise in favor of adhering to their political positions.[12] Their willingness to disregard a more constitutionally valid option is telling of the extreme partisanship in our current political climate.

The effects of Janus v. American Federation extend far beyond political ones. The future of labor unions looks bleak, particularly in regard to their already-weak collective bargaining powers. Right-to-work laws lead to a free-rider problem: non-members no longer have an incentive to help fund unions because they can instead rely on paying non-members. Such an effect was seen in Iowa, which abolished mandatory agency fees. While 83% of eligible workers support unionization, after the law was passed, 71% stopped making contributions.[13] Similarly, there is less incentive for employees to join unions: Janus could reduce union membership by 8.2%, amounting to around 700,000 employees.[14] Loss of revenue and members results in weakened collective bargaining, as unions will not be able to bring as many disputes to the judicial system, or hire attorneys to represent them. That can have disastrous impacts, such as lower wages and fewer benefits for public sector workers. Janus could result in wages dropping 3.6% for state and local government employees, and 5.4% for public school teachers.[15] Despite the advances unions have made in the past few decades, many of those accomplishments could be wiped away in the next few months.

The Court can never be an entirely neutral arbiter of law, but it should not be an entirely political institution, either. Larger political trends over the past few decades have resulted in a paradigm shift in how judges make decisions, especially when their political affiliations conflict with the law. Janus v. American Federation reveals a troubling development, in that judges no longer value the law above their beliefs. Rather, legal precedent has become secondary to personal ideology. This shift will have severe consequences for public sector employees, but also society as a whole. Janus sets a dangerous example for disregarding judicial processes in favor of partisanship, and that will only worsen as our nation becomes more politically divided.

Patty Zhang is a freshman at Johns Hopkins University majoring in Political Science and minoring in Psychology,


[1] Bui, Quoctrung. “50 Years of Shrinking Union Membership, in One Map.” NPR, 23 Feb. 2015, Accessed 26 Oct. 2018.

[2] McElwee, Sean. “How the Right’s War on Unions Is Killing the Democratic Party.” The Nation, 22 Jan. 2018, Accessed 26 Oct. 2018.

[3] “The Alliance of U.S. Labor Unions and the Democratic Party.” Scholars Strategy Network, 24 Oct. 2013, Accessed 25 Oct. 2018.

[4] Waldman, Paul. “The Republicans Are Winning Their War on Unions.” Washington Post, 27 June 2018, Accessed 25 Oct. 2018.

[5] Sorkin, Amy Davidson. “4–4 at the Supreme Court.” The New Yorker, 1 Apr. 2016, Accessed 25 Oct. 2018.

[6] “Janus v. American Federation of State, County, and Municipal Employees, Council 31.” Oyez. Accessed October 25, 2018.

[7] “Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. (2018).” Justia, Accessed 26 Oct. 2018.

[8] Dahl, Robert A. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law vol. 6, no. 2 (Fall 1957): p. 286.

[9] Gentzkow, Matthew. 2016. “Polarization in 2016.” Mimeo, Stanford University.

[10] Courtney, Vince. “U.S. Supreme Court’s Janus Decision: Pure Unadulterated Politics – Guest Opinion.” The Bay City Beacon, 23 July 2018, Accessed 25 Oct. 2018.

[11] “Scalia Embraced Compromise on Unions. Today’s Supreme Court Should, Too.” Washington Post, 26 Feb. 2018, Accessed 25 Oct. 2018.

[12] “The Future of Public-sector Unions Hinges on the Vote of Neil Gorsuch.” The Economist, 1 Mar. 2018, Accessed 25 Oct. 2018.

[13] Burke, Sean. “Right-to-Work Reaches Public Unions.” The Regulatory Review, 18 July 2018, Accessed 25 Oct. 2018.

[14] Semuels, Alana. “Is This the End of Public-Sector Unions in America?” The Atlantic, 27 June 2018, Accessed 25 Oct. 2018.

[15] Ibid.

Photo Credit: Flickr / AAUP

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