U. S. Supreme Court Hears Arguments in Janus Case

On Monday, February 26, the Justices of the U.S. Supreme Court heard oral arguments in the Janus v. AFSCME case, which will decide whether so-called “fair share” or “agency fees” charged by unions to non-members are constitutional.  Bill Johnson, NAPO’s Executive Director and General Counsel, attended the arguments at the Court.  NAPO had previously filed an amicus curiae or “friend of the court” brief with the Supreme Court, arguing that these fees should continue to be allowed.  Fair share fees allow unions to recoup some of the costs they incur in collective bargaining and grievance processing for all employees within a collective bargaining unit, services they are obligated by law to provide for all employees within the unit, even those employees who are not members of the union.  In this case, an employee objected to paying these fees, arguing that because he is a state government employee, the union when bargaining with the state employer is in effect engaging in political activity, and that he, the employee, cannot be required to support this activity with his wages, if he does not choose to do so.  The First Amendment’s Free Speech Clause is at issue here. 

The Justices of the Court peppered attorneys for both sides with repeated questions as to the scope of the constitutional claim, as well as the potential consequences for public employees across the nation if such fees were banned.  Johnson and other attorneys who were present listened carefully to each Justice’s questions for clues as to how they might be likely to rule.  Not surprisingly, the more liberal members of the Court seemed inclined to allow the continuation of such fees, while the more conservative members tended to doubt their constitutionality.  The biggest question of all was how newly appointed Justice Neil Gorsuch would rule, since the other eight Justices have had a chance to vote on this issue in an earlier case (the Friedrichs case) which vote ended in a 4 to 4 split.  Unfortunately, Justice Gorsuch did not ask a single question, so he did not give any indication of how he might vote yesterday.  However, based on the opinions he has participated in on other cases, he is more likely than not to join the more conservative Justices in prohibiting these fees.  There is still an outside chance at a compromise, where the Court may disallow compelled fees for purely political activity, but still allow them for core labor issues, such as addressing wages, hours and conditions of employment.  The late Justice Scalia had written in favor of such a compromise in an earlier case.  But Justice Gorsuch is probably less likely than Justice Scalia to forge a compromise.  Call it a 60-40 likelihood of such fees being found unconstitutional.

But as NAPO has emphasized over the last two years, even an unfavorable decision does not mean that police and public safety labor unions should despair!  Within NAPO, we have many good examples of strong and effective labor unions that operate and succeed in right to work states.  Our member groups have attracted, maintained and grown membership ranks despite not having the benefit of fair share fees.  By emphasizing the three core strengths of effective workplace representation, legal defense, and political power, these groups frequently see upwards of 90% membership on a completely voluntary basis.  NAPO’s upcoming Fall seminar will focus on the Janus decision (expected by June) and how to succeed and thrive in the post-Janusenvironment. 

If you should have any questions about the Janus case, or the arguments in the Supreme Court, please contact Bill Johnson at

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