A Supreme Court case that could topple the power of California’s unions has been a perfect storm gathering for 40 years.
America has been down the road to Janus before. The early years of the 20th century saw the Supreme Court dominated by a similar anti-labor stridency.
“The fight waged against unionism today is no less bitter than it was 50 years ago,” wrote Clarence Darrow in 1904. “It is simply directed along other lines.” Evidence of how little things have changed since Darrow’s time can be found in the pending U.S. Supreme Court case Janus v. AFSCME. For America’s public-sector employees and electoral politics, the stakes are enormous.
“The corporate lobbies didn’t put decades of time, money and energy into this because it’s marginal,” observed Gordon Lafer, a policy researcher with University of Oregon’s Labor Education & Research Center. “It’s a big thing.” Indeed, the high court’s closely watched case could be seen as the culmination of 40 years of ceaseless attacks on labor.
The road to Janus is one that labor has been down before. Its most striking historic parallel may be to today’s Roberts court and its judicial-activist doctrine of “First Amendment Absolutism” — the constitutional belief that union dues are a violation of workers’ free expression, but that unlimited corporate political spending is an inviolate act of free speech. The first 40 years of the 20th century saw the Supreme Court dominated by a similar philosophy of anti-labor stridency.
Those bare-knuckled decades were marked by overt violence against workers, mass arrests, the criminalization of labor organizing and a right-leaning high court that, among other things, held that the federal government could not ban child labor.
Over the last 40 years, American workers have seen resurgent — if far more refined — attacks on their rights, often through paid news-media opinion pieces and manipulated polling questions that depict certain groups of employees as privileged or overpaid.
The chapter and verse of divide and conquer was laid down in 1947’s Taft-Hartley Act, which explicitly empowers individual states to outlaw workplace security clauses through so-called right-to-work laws. But Janus’ DNA is also tangled in the same ’50s/’60s social ferment that saw public-sector union organizing successfully expand collective bargaining rights to state and municipal workers. The first public sector labor law was passed by Wisconsin in 1959. And while it would take California another two decades and three separate bills to catch up, by the time New York enacted the Taylor Law in 1967, 21 states had legalized some type of public-sector collective bargaining. One year later, the National Right to Work Legal Defense Foundation (NRTW) was born.
Singularly focused on outlawing the union shop through First Amendment arguments, NRTW tested this line of attack when it sued Detroit schools. 1977’s Abood v. Detroit Board of Education decision, in which the Burger Supreme Court underscored the state’s interest in maintaining “Labor peace,” spelled out the union’s right to collect a “fair share” or agency-shop fee from non-union members of a bargaining unit to pay for the non-political costs of bargaining.
Any taste of victory turned out to be fleeting. By the end of the ’70s, labor found itself leaping from the frying pan of the courts into a neoliberal inferno of deregulation. In quick succession, the Airline Deregulation Act of 1978, the Motor Carrier Act of 1980 and the 1982 breakup of AT&T decimated union jobs in their respective sectors, inaugurating a long slide in private-sector union density.
The era’s biggest quake for both public- and private-sector labor came with Ronald Reagan in 1981, when roughly 11,500 public-sector union members of the Professional Air Traffic Controllers Organization (PATCO) struck in an illegal walkout. What happened next continues to reverberate to this day: Reagan famously broke the union by firing strikers and decertifying PATCO. The bargaining power of unions was never the same: On the public-sector side, federal work stoppages virtually ceased; in the private-sector, emboldened employers like Phelps-Dodge and Hormel followed suit by illegally dismissing strikers at their own plants in favor of permanent replacements.
Aftershocks inevitably followed PATCO’s demise, often in the form of right-to-work laws. Eight states voted to leave the ranks of union security after 1985, not the least being Michigan, which in 2012 voted to outlaw the agency shop in the cradle and home of the United Auto Workers union. But it was Wisconsin’s election of far-right Republican Scott Walker and the 2011 passage of Wisconsin Act 10 that seemed to suggest the true magnitude of a post-Janus world. The bill, which effectively ended collective bargaining for some 380,000 state and local government employees, came with the Tea Party fingerprints of the American Legislative Exchange Council and a subsequent 38.5 percent plunge in union density.
On the constitutional side, much had changed since Abood. New right-wing law groups like the Center for Individual Rights and Citizens United, together with the anti-union lawyers association the Federalist Society, whose libertarian members now comprise four of the Supreme Court’s five-justice conservative majority, including both Neil Gorsuch and First Amendment hardliner Samuel Alito, joined in what has amounted to a perfect judicial storm of conservative activism. Its radical dimensions were first revealed by Citizens United v. Federal Election Commission, the 2010 decision striking down parts of the 2002 McCain-Feingold federal campaign finance law by ruling that the writing of a corporate campaign check was now constitutionally protected expression.
The court’s next decisions to touch on agency fees — a pair of First Amendment challenges brought by NRTW — were shots across the bow of public-sector unions, challenging their ability to fund their own existence. Neither 2012’s Knox v. Service Employees International Union nor 2014’s Harris v. Quinn went so far as to pull the trigger on the 1977 Abood decision, but both contained Alito-penned critiques of fair-share fees that, to constitutional lawyers, were unmistakable invitations to overturn a precedent. The seemingly inevitable ruling will come as an anticlimax for all but the 7.1 million public sector employees directly affected, along with the millions more who have come to rely on their collective voice as a bulwark against unaccountable private power.
Judging Janus: Will California’s Unions Survive?