The U.S. Supreme Court and the “Fate of the Union”

by Snell & Wilmer

Snell & Wilmer

Recently the Supreme Court heard oral arguments on a matter that could severely impact the status of unions. The dispute will determine whether nonunion employees working in the public sector should have to pay partial union dues. The deciding vote seemingly rests with the Court’s newest member, Justice Gorsuch.


The Illinois Public Relations Act allows for public sector unions to collect dues from nonmember employees.[2] These “fair share” fees cover a proportionate share of costs associated with collective bargaining and contract administration by the union. In 2015, the governor of Illinois sued to stop the payments, arguing that it violates the First Amendment by forcing nonunion employees to support the union’s political agenda. The federal district court dismissed the governor’s suit on standing grounds, but public sector employees, including the named plaintiff Mark Janus intervened. However, the district court dismissed the case because the Supreme Court already resolved this issue in Abood v. Detroit Board of Education, and the Seventh Circuit agreed.[3]

The Arguments:

Janus actively seeks an overruling of Abood, arguing that the Court should have applied a heightened First Amendment scrutiny because fair share fees are compulsory speech influencing government policy. Under “heightened scrutiny,” the state could not compel employees to pay union fees if the employee is not a union member. While unions are often significant drivers of political policies outside of collective bargaining—such as voter initiatives and political campaigns—Janus argues that collective bargaining matters, such as asking for an increase in pay, are also inherently policy motivated because they affect state budgets.

The union (AFSCME) and the state of Illinois argue that Abood is settled precedent, and that the state has a compelling interest in managing its employees. The parties also assert that nonunion members still benefit from the work of the union in negotiating contracts and collective bargaining agreements, and therefore can expect to pay an equitable share.

All states require unions to represent and bargain for all employees in the unit or group that the union represents, not just union members. Thus, if Janus prevails, unions would continue to have the obligation to represent all workers in the group, but could not compel nonmembers to pay union fees.


In Abood, the Court held that fair share fees were constitutional, albeit unions could not request fees from nonmembers to pay for expenditures not germane to its duties as a collective bargaining representative. This ensured that nonmembers would not have to subsidize ideological activities they disagreed with.

However, Abood has been the subject of judicial criticism, most recently discussed in Friedrichs v. California Teachers Association.[4] The parties litigated similar issues to those presented in Janus; however, Justice Scalia died a short time after the Court heard oral arguments. The remaining justices were split, in a 4-4 decision, forcing the Court to affirm the Ninth Circuit’s decision that kept Abood intact.

Compelled Speech:

The issue of compelled speech in the form of payments has come up before outside the context of union dues. For example, the Court has previously heard this issue regarding state bar association fees for lawyers; assessments charged to farmers for advertising; and student activity fees used for political speakers and events.

In Keller v. State Bar of California, the Court held that state bar associations could not use compulsory dues for political purposes, and that all expenditures needed to be for the purpose of regulating or improving the legal profession.[5] The bar association in that case lobbied for issues relating to gun control, environmental regulation, and other political causes not germane to its goal of improving legal services available to the state.[6] Even though this involved a state bar association instead of a union, the Court still borrowed the reasoning from Abood, and held that the expenditures must be germane to the organization’s purpose.[7]

The Court heard similar issues in the cases Glickman and United Foods, which involved advertising assessments levied on agricultural producers.[8] In Glickman, the Court held that advertising assessments against growers, handlers, and processors for the marketing of California fruits did not violate the First Amendment as compelled speech.[9] The Court reasoned that the payments did not require those affected to endorse any kind of political speech.[10] The Court reached the opposite result in United Foods, where producers of mushrooms were forced to fund advertisements promoting mushroom sales.[11] However, the Court distinguished the assessments in Glickman as a matter incidental to a broader regulatory scheme not principally concerned with speech, which were not present in the case of the advertising dues for mushrooms.[12] Again, the Court used Abood as a basis for its reasoning.

Finally, similar issues to those in Janus have appeared in a university context, in the case Board of Regents of the University of Wisconsin System v. Southworth, where students objected to student activity fees ultimately used to fund political activities on campus.[13] The Court allowed the mandatory student fee because it furthered the purpose of the school, which was to initiate a free exchange of ideas and debate.[14] While Abood informed this case, the Court approached the issue from a public forum jurisprudence, which requires that the funding follow the rules of viewpoint neutrality.[15] Viewpoint neutrality justifies requiring the students to pay the fee and for ensuring integrity of the program’s operations.[16] Ultimately, the Court agreed that there was enough viewpoint neutrality in university procedures to justify the imposition of these mandatory student fees.[17]


Even after a review of similar issues brought before the Supreme Court, the Court’s constant reliance upon Abood gives no further clues as to how the Janus litigation will end. In fact, the end of Abood could produce an impact that reaches even beyond unions. Of course, there is no denying that union funding would take a dramatic hit if Janus overrules Abood.

Justice Gorsuch, who remained silent throughout, holds the key to reaching finality on this long-litigated issue. As noted, the other justices have already examined the issue, which resulted in the 4-4 split from last fall. Thus, Justice Gorsuch will be the deciding vote. While many groups believe he will side with the conservative justices, it is hard to tell based on oral arguments alone. Abood is settled precedent, but Janus stands to pioneer less restricted and less complicated First Amendment jurisprudence.

[1]The authors thank Hayden Hilliard, Diversity Writing Intern, for his helpful contributions to this article.
[2]5 ILCS 315 (2016).
[3]See Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Janus v. American Federation of State, County and Municipal Employees, Council 31, 851 F.3d 746 (7th Cir. 2017).
[4]136 S. Ct. 1083 (mem.).
[5]496 U.S. 1, 17 (1990).
[6]Id. at 15.
[7]Id. at 9.
[8]See Glickman v Wileman Bros. & Elliot, Inc., 521 U.S. 457 (1997); United States v. United Foods, Inc., 533 U.S. 405 (2001).
[9]Glickman, 521 U.S. at 477.
[10]Id. at 470–471.
[11]United Foods, 533 U.S. at 415.
[13]529 U.S. 217, 223 (2000).
[14]Id. at 233.
[15]Id. at 221.
[16]Id. at 233.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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