"Power, Not Reason" on Fees in Public Unions Case?

      Justice Thurgood Marshall let out an anguished wail in 1991 when the Supreme Court overruled a decision barely four years old to prohibit the use of victim impact statements in death penalty trials. "Power, not reason, is the new currency of this Court's decisionmaking," Marshall wrote in his dissent in Payne v. Tennessee (1991).
      Marshall had been part of the 5-4 majority in the earlier decision, Booth v. Maryland (1987), that found an unacceptable risk of prejudice in allowing surviving family members to air their opinions in the sentencing phase of a capital murder trial. With two new justices four terms later, the Court had specifically asked lawyers to address the question of whether to reconsider the still new precedent.
      Marshall, in his final opinion before he announced his retirement the same day, was especially sharp in criticizing his colleagues for disregarding stare decisis — the legal doctrine that calls for following rather than overturning prior decisions. "Neither the law nor the facts supporting Booth . . . underwent any change in the last four years," Marshall wrote of the new 6-3 decision. "Only the personnel of this Court did."
      The Court confronts a similar situation on Monday [Feb. 26] as a fortified bloc of conservative justices prepare to jettison a 40-year-old precedent important to public employee unions for no good reason except their raw power to do it. Conservative justices with little regard for organized labor are set to deal a body blow to the financing of public sector unions. Their anticipated decision will eliminate public employee unions' ability to require non-union members to pay their "fair share" of the costs of representing them in collective bargaining and other workplace issues.
      The precedent at issue, Abood v. Detroit Board of Education (1977), has rankled anti-union forces for decades despite the protection that the decision bestowed on dissident non-union teachers in the instant case. Led by Justice Samuel A. Alito Jr., the Roberts Court has taken pot shots at the decision in three cases over the past six years and now appears ready to overturn it with Justice Neil Gorsuch expected to use the stolen ninth seat to cast the decisive fifth vote.
      In the first of those decisions, Alito dumped on Abood as "an anomaly" without recognizing that it established for public sector unions the same legal framework that applies to unionized companies in the private sector. Abood dealt with what economists call the "free rider" problem: the natural tendency for someone to avoid paying if possible for some publicly available benefit or service of some sort.
      Federal labor law requires that a union, once certified by a majority of workers in a democratic election, represent and advocate for the interests of all the workers even those who voted against or refuse to join the union. Workers cannot be required to join a union as dues-paying members, but non-union members can be required to pay a so-called agency shop fee to cover the union's costs in representing them along with union members.
      In Abood, a somewhat fractured Court crafted a compromise of sorts by limiting the state laws authorizing agency shop fees for public employee unions to some extent. To avoid a compelled-speech issue, the mandatory fees paid by non-union members could be used only for workplace issues, not for the union's political or lobbying activity. The non-union members could opt out of paying for those activities and claim a partial refund based on the percentage of the union's budget devoted to non-collective bargaining activities.
      A decade later, the Court's decision in Chicago Teachers Union v. Hudson (1986) regularized that limitation by requiring public employee unions to send members and non-members alike a notice about their right to opt out of paying that portion of the fees devoted to non-collective bargaining activities. The procedure entailed some difficult line-drawing to identify the political activities that objecting non-union members could avoid paying for, but overall the Hudson notice system proved to be workable.
      Back in 1991, Chief Justice William H. Rehnquist answered Marshall's dissent on victim-impact statements by stating the obvious that the doctrine of stare decisis "is not an inexorable command." Precedents are not sacrosanct, never to be overruled. If they were, Plessy v. Ferguson would still be on the books and racial segregation still the law of the land. Even so, respect for precedent requires some special justification for overruling a prior decision — justification that Marshall found lacking in the Booth  to Payne sequence on victim impact statements.
      The plaintiffs in the new public sector union case, Janus v. AFSCME, have not carried the burden of showing that Abood is unworkable in the light of four decades of experience or unsound as a matter of legal doctrine. To reiterate: Abood protects objecting non-union teachers, for example, from being forced to pay for teachers' union lobbying or election campaigning.
      Nothing has changed in the past 40 years except the growing strength of anti-union forces who want to use the courts to undercut the laws enacted in nearly half the states to authorize public sector unions for the benefit of public employees and public sector labor-management relations. With a decision likely in June, expect a conservative majority to wrap themselves in a vision of the First Amendment that gives an invented constitutional right to free-riding government workers who take the benefits of union representation without paying for them.