Janus v AFSCME

  • February 27, 2018
    Guest Post

    by Alice O’Brien, General Counsel, National Education Association

    For the fourth time in six years, the Supreme Court yesterday took up the question of whether a state may require public sector employees to pay for the collective representation a union provides as part of the state’s chosen system of labor management relations. And yet again, at argument, Justice Kennedy came in swinging against a strawman – teacher tenure.

    As the Solicitor General of Illinois explained the interest that state has in a “stable, responsible, independent counterparty” in bargaining, the Justice sarcastically queried whether that interest extended to promoting “teacher tenure.” In raising the issue, Justice Kennedy was returning to a well-trod theme. In all three of the arguments since Knox involving fair share fees, Kennedy has viewed tenure –inexplicably – to be somehow relevant to the constitutionality of fair share fees. 

  • February 21, 2018
    Guest Post

    by Elliot Mincberg, Senior Fellow at People For the American Way

    *This piece was originally posted on Medium.

    Later this month, the Supreme Court will hear oral arguments in Janus v. AFSCME Council 31, which right-wing activists hope will lead a conservative Court majority to deal a “crushing blow to organized labor.” The case is part of a lengthy effort by labor opponents to get the Supreme Court to overrule the 1977 precedent in Abood v. Detroit Board of Education that public employers can require workers who choose not to join a union to at least pay for the costs of collective bargaining from which they benefit, despite free speech claims to the contrary. The Court split 4–4 on this issue in the Friedrichs case two years ago after the death of Justice Scalia, but anti-union activists hope the addition of the very conservative Justice Gorsuch could push the anti-union cause over the top. A close look at the record in Janus, however, suggests some important differences compared with Friedrichs and other cases that could well result in the preservation of Abood and union workers’ rights.