The Most Important Labor Case in Decades Is Currently Before the Supreme Court. What Happens Next?

Governor of Illinois Bruce Rauner speaks to members of the media in front of the US Supreme Court after a hearing on February 26, 2018, in Washington, DC. Rauner signed an executive order to stop fair-share fees in his state, a move that prompted lawsuits from a number of unions. (Photo: Alex Wong / Getty Images)

On February 26, the Supreme Court will begin hearing oral arguments in Janus v. American Federation of State, County and Municipal Employees, Council 31 (Janus v. AFSCME), a case that could permanently alter organized labor in the United States. In many ways, the Janus case is the culmination of a specific legal attack that the right has been launching against unions for the past decade.

How Did We End Up Here?

The case takes aim at the balance surrounding fair-share fees for public employees, which was established via the 1977 Supreme Court ruling Abood v. Detroit Board of Education. For the last 41 years, workers have been able to choose whether or not to join a union and whether or not they want to pay the union’s membership fees. The union is compelled to collectively bargain on behalf of all workers, whether they belong to the union or not. However, in 22 states, public-sector unions can negotiate an arrangement as part of their collective bargaining agreement that allows them to collect fair-share fees from workers (regardless of whether or not they belong to the union) and use them to collectively bargain. Workers are still free to refrain from donating toward the union’s political activity.

A recent In These Times investigation revealed how a vast network of billionaires, think tanks and businesses have targeted fair-share fees over the past decade. After Gov. Scott Walker infamously converted Wisconsin into a “right-to-work” state amidst massive protests, this network began using Walker’s blueprint in other red states. At this point, 15 states have passed legislation to limit collective bargaining by public-sector workers, and six states have passed union-busting, right-to-work laws proposed by the conservative American Legislative Exchange Council (ALEC).

In blue states, the battle has predictably been more difficult, but the right’s strategy has always been to hit unions with an unceasing barrage of litigation. The lawyers for these lawsuits are generally supplied by groups like The National Right to Work Legal Defense Foundation, a nonprofit established in 1968 with the expressed purpose of eliminating union power. In one of these cases (2012’s Knox v. SEIU) Supreme Court Justice Alito questioned the court’s precedent on fair-share fees and wondered whether they might actually infringe upon the First Amendment rights of workers who don’t belong to their union.

Knox v. SEIU did not attempt to challenge the constitutionality of fair-share fees, but Alito’s opinion had opened a new avenue toward eradicating union power, and the right quickly took notice. Two years later, Harris v. Quinn made its way to the Supreme Court. Pamela Harris was a health care worker, represented by the National Right to Work Legal Defense Foundation, who was suing the governor of Illinois over fair-share fees, which she said violated her First Amendment rights. Harris ultimately prevailed, but the case didn’t overturn the Abood ruling. The majority determined that Harris’s First Amendment rights had been violated by the fees, but they also found that Harris couldn’t be considered a full-fledged public employee because the state didn’t have complete control of her employment. In other words, Abood didn’t apply to Harris’s case. Once again, Alito signaled to the right that Abood could be overturned if the proper case emerged. “A critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption,” he wrote.

That case was supposed to be Friedrichs v. California Teachers Association. Rebecca Friedrichs and nine other public-school teachers sued the California Teachers Association over fair-share fees in 2014, claiming that their First Amendment rights were being violated. They were represented by the Center for Individual Rights, a law firm that has focused on rolling back regulations and limiting the rights of workers. The case was argued in the Supreme Court at the beginning of 2016, but Justice Antonin Scalia died halfway through the Court’s term, locking the case at a 4-4 ruling. Many believed that organized labor had dodged a bullet, but the election of Donald Trump and his subsequent appointment of Justice Neil Gorsuch has cued up the same potentially devastating blow.

In 2015, Illinois’s Republican Gov. Bruce Rauner passed an executive order to stop fair-share fees in his state. He was sued by a number of unions, failed in his attempt to move the case to federal court, and then launched his own lawsuit in an effort to get another ruling on the matter from the Supreme Court. Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, joined Rauner’s lawsuit as an injured party. “I’m definitely not anti-union,” Janus told The Washington Free Beacon last year, ” … I just don’t think I should be forced to pay a group for an association I don’t agree with.”

Now, represented and backed by the right-wing forces who have spearheaded every previous attempt to kill fair-share fees, Janus’s case is being heard before the Supreme Court.

Resistance in the Streets

On February 24, thousands of people flooded the streets across 28 US cities to protest the impending Janus decision and demanding improved conditions for working people throughout the country.

Dubbed the Working People’s Day of Action, the protests specifically drew inspiration from the 1968 Memphis Sanitation Workers Strike, which Martin Luther King Jr. was participating in when he was assassinated. “We’re standing shoulder to shoulder to rise up against those advancing their profits over our progress,” Jobs With Justice Executive Director Sarita Gupta said of the protests. “No court, no president, and no corporate bully can stop us when enough of us unite for our freedoms to achieve a decent living, equitable workplaces, strong health care, safe communities and a better future.”

In New York City, where over 10,000 people hit the streets, Baxter Leach, a sanitation worker from the 1968 strike, told a crowd, “Every man and woman deserves the freedom to make a decent wage, so you can provide for your family. And in that freedom is dignity.”

The Racist History of “Right-to-Work” Policies

There is a deeper significance to protesters invoking the legacy of Martin Luther King Jr., as “right-to-work” policies have a notable racist past. The concept comes from an editorial writer named William Ruggles who proposed a constitutional amendment to constrain union shops in 1941. Its first champion was the Christian American Association’s Vance Muse, whose own grandson referred to him as “a white supremacist, an anti-Semite, and a Communist-baiter, a man who beat on labor unions not on behalf of working people, as he said, but because he was paid to do so.” Through an organization called the Southern Committee to Uphold the Constitution, Muse tried to stop Franklin Roosevelt from being renominated in 1936 by insisting that the New Deal would threaten racist Jim Crow laws. “That crazy man in the White House will Sovietize America with the federal handouts of the Bum Deal — sorry, New Deal. Or is it the Jew Deal?” asked Muse.

During World War II, anti-labor forces felt compelled to tone down some of their anti-Semitic rhetoric, but certainly not their anti-Black rhetoric. In 1944, the Arkansas Farm Bureau Federation launched a campaign to establish a right-to-work amendment. Muse’s group declared that the legislation was necessary to preserve Jim Crow and passed out racist literature claiming that if a right-to-work law wasn’t passed, “white women and white men will be forced into organizations with black African apes.”

A recent Daily Beast column by Barrett Holmes Pitner places the Janus battle in this context, connecting it to issues like voter ID laws and school choice. “America appears more committed to re-litigating the past in order to create a more unequal and racially divided society,” wrote Pitner. “And we’re doing it by selling Americans racist policies masked as beacons of individual liberty and pillars of democratic freedom. Janus v. AFSCME is based on an alleged violation of Janus’ individual First Amendment rights and demonstrates no understanding or concern for how his actions will disproportionately harm American minorities.”

Pitner’s assertion is backed up by a recent report from the Economic Policy Institute, which details how the group most impacted by the Janus case could prove to be Black women. Black women make up almost 18 percent of the public-sector workforce, but face a racial and gender pay gap, making only 65 cents for every dollar their white male counterparts make. “If the Supreme Court decides in favor of weakening unions,” reads the report, “it will impact the future of democratic decision making in the workplace and the preservation of good, middle-class jobs in public employment that have traditionally benefited African American women who have chosen to serve the public for their careers.”

What Does a Post-Janus Labor Movement Look Like?

There’s a fair amount of debate regarding what will happen to unions if the right prevails in the Janus case. While some envision the death knell of organized labor, others believe that such a precedent could lead to viable First Amendment challenges toward existing anti-union policies. In fact, the International Union of Operating Engineers Locals 139 and 420 recently sued Wisconsin Gov. Scott Walker, claiming that his right-to-work legislation violates the First Amendment rights of unions.

Beyond these legal fights, it seems clear that public-sector unions might be forced to organize the same way their private-sector counterparts do: fighting for every member, making a consistent case for participation and doing it all on a frequently tight budget.

JP Kaderbek, a rank-and-file Teamster and member of the Democratic Socialists of America, told Truthout that there wasn’t much evidence that the majority of public-sector unions are prepared for such a transition. “It’s hard to describe the labor movement in general as prepared for Janus when they’ve been consistently losing the legislative fight against right-to-work for 20 years, while also losing contract fights against the bosses,” said Kaderbek. “A small handful of unions have been responding appropriately, by stepping up their organizing and engaging their members, but too many others are doubling down on their failed strategy of spending cash worth the salaries of dozens of organizers on the campaigns of Democrats with no interest in seeing a vibrant labor movement, and who consistently fail to push pro-labor policies.”

However, Kaderbek also cited the current West Virginia teacher strike as a blueprint for how labor can succeed in the post-Janus era. West Virginia is a “right-to-work” state where fair-share fees are banned, as well as a state where Donald Trump won almost 70 percent of the vote in the last election. Last Thursday, teachers throughout all of the state’s 55 counties walked out, demanding a pay increase and affordable health care. “That’s how you win a contract,” said Kaderbek, “and that’s also how you keep the labor movement alive after Janus.”

Whether or not the labor movement will be able to adapt to the ruling or develop effective strategies might be an open debate, but nearly everyone agrees that, once the Janus case is decided, unions will be fighting on a different battlefield.