by Lisa Soronen, State and Local Legal Center  

In 2016, the Supreme Court was expected to overrule a nearly 40-year precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. Justice Scalia died shortly after the Court heard oral argument in Friedrichs v. California Teachers Association. The Court ultimately issued a 4-4 decision which, practically speaking, kept Abood v. Detroit Board of Education (1977) on the books.

With a ninth Justice now on the bench, the Supreme Court has agreed to try again to decide whether to overturn Abood in Janus v. American Federation of State, County, and Municipal Employees. More than 20 states authorize fair share for public sector employees.

In Abood, the Supreme Court held that the First Amendment does not prevent agency shop agreements where public employees who do not join the union are still required to pay their fair share of union dues for collective bargaining, contract administration, and grievance adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. Therefore, no free-riders are allowed.

In Harris v. Quinn (2014), the Supreme Court refused to extend Abood to Medicaid home health care providers because they aren’t full-fledged public employees. Justice Alito’s majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas, was critical of Abood discussing at length it's “questionable analysis.” Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, included a lengthy and vigorous defense of Abood.

In Harris, the Justices’ views of Abood were made readily apparent. So all eyes and ears will be on whether Justice Gorsuch will join the conservative wing of the Court and vote to overturn Abood.

Even in a term as interesting as this one promises to be, Janus will be a big case. Agency fee is a foundational principle of public sector collective bargaining in the United States. Overturning it will represent a major change in the law and will weaken public sector unions.