The Racism of the Supreme Court’s “Janus” Decision

What comes next now that the Supreme Court’s conservative majority has upended over 40 years of labor law?

Erica Smiley, an organizing director at Jobs With Justice, told Truthout that in the wake of the Supreme Court’s Janus v. AFSCME ruling on Wednesday, which means that public sector unions can no longer require workers to pay dues, activists must work toward shifting labor law at the state level and challenging the current models of collective bargaining. It’s also imperative for labor organizers to increase union access for employees, she said.

The court’s 5-4 decision on Wednesday overturned 1977’s Abood v. Detroit Board of Education, the case that allowed unions to collect “fair-share” fees from members and use that money to collectively bargain on behalf of workers, whether they were represented by the union or not. Janus v. AFSCME was a 2015 lawsuit brought against the American Federation of State, County and Municipal Employees by Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services who argued that he should be able to refrain from paying his fair-share fee. By ruling in Janus’s favor, the Supreme Court decided that unions violate their workers’ First Amendment rights by requiring them to pay the fees.

Like many of the Supreme Court’s recent decisions, the Janus v. AFSCME ruling has a racist edge.

“This Supreme Court case threatens all union workers, but Black people stand to lose the most,” Smiley told Truthout. “The dog whistle attacks on public sector employees has long had a sharp racist edge, not only undermining the institutions of government but equating public servants as “lazy free-loaders” — terms often used against communities of color to justify ill treatment.”

A Blow to Organized Labor

Many in the labor movement viewed this decision as inevitable ever since Trump took office and were further convinced of this point after he picked conservative Neil Gorsuch to fill the empty seat created by Antonin Scalia’s death. Expecting it certainly did not make the ruling any less devastating for labor activists and leaders.

“The Supreme Court has dealt a blow not just to public sector unions, but to democracy itself,” said Richard Kahlenberg, a senior fellow at The Century Foundation and co-author of the book, Why Labor Organizing Should be a Civil Right. “Unions serve democracy by providing a check on arbitrary government power, sustaining a middle-class society and acculturating workers to democratic norms. At a time when many pillars of our democracy are under assault, we need to strengthen, not weaken, America’s trade union movement. One step Congress could take: amending the Civil Rights Act so that it prohibits discrimination against workers trying to organize a union.”

The Racist Roots of Janus

The Supreme Court’s Janus decision comes just two days after the court upheld Trump’s travel ban, which targets Muslim-majority nations. While some might struggle to find a connection between a xenophobic executive order being confirmed and a ruling regarding union dues, racist parallels exist.

The Janus v. AFSCME decision effectively expands “right-to-work” laws throughout the entire country. These laws have specifically already been passed in 28 states, banning the requirement of union fees. Mark Janus’s case was funded and backed by right-wing groups like the National Right-to-Work Foundation.

“Right-to work” is a political idea conjured up in a 1941 newspaper editorial by a man named William Ruggles. The first notable fan of Ruggles’s concept was Vance Muse, who was described by his grandson 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.” Muse was a vocal opponent of President Franklin Roosevelt and his New Deal policies. “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?” he declared. In 1944, the Arkansas Farm Bureau Federation launched a campaign to establish a right-to-work amendment and Muse’s political organization passed out literature arguing that, without such a rule, “white women and white men will be forced into organizations with black African apes.”

Janus’s racist context certainly doesn’t end with its historical roots. African Americans, Latinos, Asian Americans and Pacific Islanders make up a third of unionized state and local government workers. According to an Economic Policy Institute (EPI) report released in February, the group most affected by the court’s decision will be Black women.

Janus is slated to potentially impact about 17 million public sector workers throughout the country and Black women make up almost 18 percent of that group, about 1.5 million workers. Additional EPI research shows that Black women only make 65 cents for every dollar that their white male co-workers earn. The pay gaps for Black women are less severe if they belong to a union. Black women in unions make almost 95 percent of what their Black male co-workers earn, while those not in a union make just 91 percent.

“We know that women, and disproportionately women of color, have a ton to lose in this fight, because we know that it’s unions, and public sector unions in particular, that are the engines of our economic security, our equality, and our dignity,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center, at a rally held shortly after the Janus oral arguments began in February.

Erica Smiley explained to Truthout how unions have impacted her own family and reflected on how important they are for Black families throughout the country:

Both of my parents went to public schools, segregated for the overwhelming majority of it. And when they graduated, they both initially went to land grant public Historically Black Colleges for undergraduate degrees before going on to get graduate degrees elsewhere. And afterwards, my mom went on to work in public transportation in North Carolina, and my dad became a professor. I had an extremely comfortable life, attending high performing, integrated public schools … I went to the flagship university in the state and then began to make my living — actually make a living — in the social justice movement … I wanted to share some of this personal context to illustrate the role of the public sector in providing a pathway to economic security for Black people in the United States, my family included…. Public sector jobs have long been the pathway for Black families in particular to achieve economic sustainability, especially when overt and covert discrimination kept them out of employment in construction, manufacturing and other parts of the private sector considered to be good jobs.

What Comes Next?

Many voices in the labor movement are calling on workers to become more radical in response to Janus. “Workers will have to reconstruct this countervailing power and find new ways to build solidarity. We’re going to have to get bold again,” wrote Bryce Covert in The New York Times. Covert cited the Red State teacher strikes that happened earlier this year in West Virginia, Oklahoma and Arizona. A sizable part of that organizing came from rank-and-file employees, outside of the traditional channels of Big Labor. She also identified the Fight for $15 movement as a potential model, as the group has helped secure minimum wage increases in a number of states.

In addition to arguing for increased access to unionization and organizing aimed at local labor laws, Erica Smiley said she and other activists will be seeking opportunities to refuse participation in unjust laws and looking for elected leaders who might join us in that effort.

“As a Black person, I have the heritage of having to overcome centuries of backwards court cases and laws explicitly mean to limit our freedoms, so I am often reminded by my own family that we have been through worse, and ultimately come out on top,” she told Truthout. “Our people, including the individuals and their unions impacted by this ruling are resilient. And this time will be no different.”