Court Strikes Fair Share

Steven D. Schwinn, John Marshall Law School

The Supreme Court today ruled that Illinois's fair-share, agency-fee requirement for non-members of public sector unions violated the First Amendment. The ruling deals a significant blow to public sector unions.

The 5-4 ruling wasn't entirely a surprise: The Court has sent several signals in recent years that fair-share was on the chopping block. The big question for the Court in today's ruling, Janus v. AFSCME, was how Justice Gorsuch would vote. He voted with the other conservatives against fair-share.

We last posted on the case here.

As part of the ruling, the Court overturned Abood v. Detroit Bd. of Ed., the 1977 case upholding a fair-share requirement against a First Amendment challenge. The Abood Court held that the state's interests in avoiding free-riders and maintaining labor peace justice any intrusion into First Amendment rights of non-members. Today the Court said that "Abood was poorly reasoned," that it "has led to practical problems and abuse," and that it "is inconsistent with other First Amendment cases . . . ."

The ruling means that states can no longer allow public sector unions to require non-members in a public-sector union shop to pay "agency fees" or "fair share" fees that go to the union's collective bargaining activities (but not to its political activities).

The ruling could have a devastating effect on public sector unions, or it could energize them. Time will tell.

It's unclear at this point whether the ruling could be used to challenge fair-share in the private sector.

Justice Kagan wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Sotomayor dissented separately.