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Picking Apart Precedent: What the Demise of Public Sector Unions’ Fair Share Fees Reveals About the Weakening of Stare Decisis and the Exploitation of the First Amendment

Andy Feng

Georgetown University

There is a presumption that precedents will be followed. But it is not—the rule of stare decisis is not an inexorable command, and I don’t think anybody would want a rule in the area of constitutional law that ... said that a constitutional decision, once handed down, can never be overruled.

—Justice Samuel A. Alito Jr., Supreme Court Confirmation Hearing (2006)ci

Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis.

—Justice Elena Kagan, dissenting opinion in Janus v. AFSCME (2018)cii

Introduction

The concept of stare decisis is frequently invoked within the legal world by attorneys, judges, Justices, and scholars on both sides of the ideological spectrum. In addition, the doctrine has made its way into politics and thus general American society, with the recent discussion over Roe v. Wade (1973),ciii Planned Parenthood v. Casey (1992),civ and Dobbs v. Jackson Women's Health Organization (2022)cv gripping public attention and dividing the nation into not only ideological teams but also jurisprudential schools of thought.cvi The issue of interpreting stare decisis is a broad one within Supreme Court jurisprudence, but this paper directly focuses on the concept within the context of labor law. Specifically, this paper will critically analyze the fortyyear arc of stare decisis and the public sector union funding tool known as the “fair share fee.” cvii Furthermore, the many Supreme Court cases involved in this decades-long legal tale engage a plethora of additional legal issues such as the unstable principle of reliance on past precedent, the use and abuse of the First Amendment, and the recent conservative-led politicization of the court. In Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018), Justice Samuel Alito’s dismantlement of the fair share fee precedent established by Abood v. Detroit Board of Education (1977) signified the demise of the strong stare decisis tradition and the general vulnerability of the doctrine within America’s current hyper-ideological Supreme Court. Furthermore, by specifically using First Amendment principles to incrementally weaken Abood through Knox v. Service Employees International Union, Local 1000 (2012), Harris v. Quinn (2014), and Friedrichs v. California Teachers Association (2016), Alito demonstrates the process of exploiting constitutional free speech protection as a political weapon—one that postJanus conservatives have swiftly implemented.

A. Abstract

This paper’s argument regarding the dual exploitation of stare decisis and First Amendment principles leading up to and within Janus v. AFSCME will be documented chronologically in various eras of jurisprudential thought. Section I will provide a brief overview of fair share fees, which represent the crux of Janus and its predecessors. Section II will detail the pre-Janus era, the idea of labor peace, and the rise of strong stare decisis principles. Section III will expose Justice Samuel Alito’s successful exploitation of legal doctrine with the help of a conservative-leaning Supreme Court in Knox, Harris, and Friedrichs. Finally, Section IV will critique Alito’s legal argumentation within Janus on two fronts: (1) his fraught application of “exacting scrutiny” and (2) his notion of poor reasoning within stare decisis. Finally, Section IV, Part C and D will demonstrate the disastrous repercussions of Alito’s actions. Part C will investigate conservatives’ plans to leverage Janus for political gain, while Part D describes the destabilizing impact Janus has had on judicial nonpartisanship and legitimacy.

Background: The Birth of Fair Share Fees

The American labor concepts fiercely debated within Janus are not new inventions and are instead ideas that were developed in tandem with the rise of American industrial unionism in the early-to-mid 1900s. The public sector union legal debates that arose in Abood and continued through Janus revolve around various levels of union security agreements, under which “employers require all employees to undertake a specified level of support for the union as a condition of employment.”cviii In Janus, the specific type of union security involved is the agency shop, which entails a workplace that does not require full union membership but mandates that all workers pay periodic union dues.cix

A. Supporting Fair Share Fees

Pre-Janus, non-union public sector employees were obligated to pay a special union due called a fair share fee or agency fee, which went solely towards funding collective bargaining. Specifically, fair share fees “can only fund activities related to collective bargaining and contract administration and are expressly prohibited from funding the union’s political advocacy.”cx

Supporters of this policy argue that all employees in the agency shop workplace must contribute toward collective bargaining costs because the process eventually benefits both union members and non-members in contract negotiations.cxi Furthermore, public sector unions cite the elimination of free riding as a crucial reason to require non-union members to “pay [their] fair share of the cost of representation.”cxii This phenomenon occurs when workers are allowed to “[receive] the benefits of unionization without paying membership dues or fees.”cxiii On a fundamental level, the existence of free riding is destructive to unions as a majority of economically sensible workers would leave the union, opt out of paying dues, but still benefit.

B. Opposing Fair Share Fees

The First Amendment’s right to free speechcxiv includes two specific principles: the right to core political speechcxv and the protection against government-compelled speech.cxvi These two protections are the theoretical bases behind the arguments of opponents of the agency shop model and fair share fees.cxvii They argue against an employee having to pay any sort of fee to a union they do not support, even if collective bargaining benefits the entire workplace.cxviii Instead, these workers, associated groups like the National Right to Work Legal Defense Foundation (NRTW), and avowed pro-business Supreme Court justices like Samuel Alitocxix would favor a national move toward “right-to-work laws, [which] prohibit and invalidate union security agreements.”cxx The NRTW’s philosophy behind this model of labor-management relations maintains “a focus on individual freedom from compulsory unionism abuses.”cxxi According to NRTW, twenty-seven states—a majority within the US—currently have some form of these antiorganized labor statutes in place.cxxii This number has risen from twenty-two in 2008, coinciding with the groundswell of opposition public sector unions have experienced from state legislatures and the Supreme Court.cxxiii By analyzing the ideological intent behind Janus and preceding decisions, this paper will outline how Justice Samuel Alito and his powerful anti-public sector union allies leveraged First Amendment principles as a cudgel to entrench this national right-towork regime.

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