The U.S. Supreme Court on Feb. 26 heard spirited arguments in the Janus v. AFSCME case, a lawsuit aimed at starving public-employee unions, including the UFT, of the funding they need to provide services to and advocate for workers.
Justice Sonia Sotomayor summed it up after the Janus attorneys argued to the court that all collective bargaining in the public sector is political. “You’re basically arguing to do away with unions, because you are ... saying every single employee decision is really a public policy decision,” she said.
The lawsuit is the culmination of a decades-long, coordinated campaign by conservative groups to debilitate unions, one of the few strong advocates for workers.
“The Janus case is bankrolled by right-wingers who want to cut salaries, dictate working conditions and roll back 50 years of hard-won civil and workers’ rights,” said UFT President Michael Mulgrew. “That’s why they are going after one of the remaining institutions that stands up to them — unions.”
The court is expected to deliver a decision in May or June.
At issue are the laws in 22 states, including New York, that allow public unions to collect “agency” or “fair-share” fees from public employees who are not union members but benefit from collective bargaining. In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that unions could collect these fees for collective bargaining and related activities, but not for political activities. But today’s court, now dominated by conservatives, seems poised to overturn that 41-year-old precedent and declare fair-share fees unconstitutional.
Justice Elena Kagan observed how these state laws plus the “livelihoods of millions of individuals” would be “affected all at once” if the court overturned Abood. “When have we ever done something like that?” she asked. “What would be the justification for doing something like that?”
Justice Anthony Kennedy responded scathingly when the lawyer representing the state of Illinois spoke of the importance of unions as stable and reliable partners.
“It can be a partner with you in advocating for a greater-size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes? That’s the interest the state has?” Kennedy asked.
It is the second time in nearly two years that the high court has considered the constitutionality of fair-share fees. The death of Justice Antonin Scalia in 2016 led to a 4-4 deadlock on a predecessor case, Friedrichs v. California Teachers Association. The same conservative donors and anti-worker organizations that spearheaded the Friedrichs lawsuit, including the National Right to Work Legal Defense Foundation and the Liberty Justice Center, are behind the Janus lawsuit.
The Trump administration filed a friend-of-the-court brief on behalf of Janus in December. Trump’s appointee to the court, Neil Gorsuch, is likely to cast the tie-breaking vote. Gorsuch was silent during the oral arguments.
Thousands of UFT members took to social media on the day of the arguments to show their support for the union, using the hashtags #UnionProud and #ImStickingWithMyUnion. Working People’s Day of Action rallies across the country, including a rally in Foley Square in lower Manhattan, brought tens of thousands of union members together on the preceding Saturday.