For decades, conservative jurists and scholars criticized the Warren Court for judicial activism. With its Janus decision, the Roberts Court can now claim that description far beyond anything contained in the Warren Court decisions. Today, a 5-4 majority of unelected “Platonic guardians” have declared unconstitutional “fair share,” voluntarily-negotiated collective agreements in the public sector. The Court has thus projected the judiciary into the debate about issues like pensions and government bankruptcy in a decision in which the Court relies upon such for its conclusion that nonmember First Amendment rights have been denied. It also creates a new round of litigation and instability.
One of the many radical features of today’s decision is its declaration of war upon the system of collective bargaining in the United States, which is predicated upon private finance—and for the union side, this means union dues collected from a group, the majority of which have voted for union representation. Today’s decision substantially undercuts this system, emasculates the interests of workers, and promotes free riders—non-union workers who get the benefits of the union contract.
The Court’s decision also creates, for now, a two-tier system with a national right to work law for certain public workers while Congress has left the people in the private sector and their representatives to decide for themselves, not the judiciary.
It is no secret that this unsurprising ruling is designed to weaken public sector unions—its author, Justice Alito has scarcely been able to contain himself in his desire to uproot more than 60 years of precedent for the past 6 years. Justice Alito, on behalf of the 5-4 majority, wrote today: “The idea of public sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.” As would railways, television, and the internet?
This is just one more ruling designed to eliminate democratic self-government, to financially cripple union representatives, to further the gap between the haves and have nots, and to do harm to the political opposition with whom most unions are allied. Justice Alito has said that this is one of many steps that he and the new activists will take. A careful reading of the majority opinion shows that the next step will be an attack upon the system of exclusive bargaining itself where the union represents all workers, union and non- union, and litigation about such fair share agreements in the private sector as well as the public (the subject of today’s decision).
Finally, again intruding into the political arena in which it has intervened far beyond any prior Court in the past 80 plus years, the Court requires what California voters and others have rejected frequently, i.e., the requirement that non-union members “affirmatively consent to pay” dues of any kind. Based upon this reasoning, the new “black robed rulers” whom Justice Kagan has properly decried in dissent, have politicized and discredited a branch of government long regarded as an essential prerequisite to democracy.
William B. Gould IV is the Charles A. Beardsley Professor of Law, Emeritus at Stanford Law School. He served as Chairman of the National Labor Relations Board in the Clinton administration.