In what is all but certain to be a terrible blow to organized labor, the Supreme CourtÂ announcedÂ on Thursday that it will hearÂ Janus v. AFSCME, a case seeking to defund public sector unions. The case presents an issue that was recently before the Court, andÂ where the justices split 4-4 along party lines.
Now that Neil Gorsuch occupies the seat that Senate Republicans held open for more than a year until Donald Trump could fill it, he holds the fifth vote to deliver a staggering blow to the union movement.
The issue inÂ JanusÂ involves what are sometimes referred to as â€śagency feesâ€ť or â€śfair share fees.â€ť As ThinkProgressÂ explainedÂ when this issue was last before the Court:
Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy aÂ wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.
Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.
To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.
The plaintiff inÂ JanusÂ asks the Supreme Court to declare these agency fees unconstitutional, at least in contracts involving public sector unions, under what can charitably be described as anÂ aggressive reading of the First Amendment. Indeed, prior to his death, even conservative Justice Antonin Scalia sometimes appeared skeptical of the plaintiffâ€™s legal theory (although he didÂ join an opinionthat embraced much of it).
With Gorsuch on the bench, however, there is little suspense regarding howÂ JanusÂ will come down. Unions will almost certainly be severely weakened by this decision. And, as a benefit to the Supreme Courtâ€™sÂ increasingly partisan majority, that will also weaken a key arm of the Democratic partyâ€™s political infrastructure, making it more likely that the Court will remain in Republican hands.
This blog was originally published at ThinkProgress on September 28, 2017. Reprinted with permission.
About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.