May 30, 2018 — Patrick Wright, Mackinac Center for Public Policy
Janus v. AFSCME is one of the most important Supreme Court cases this term and perhaps one of the most important in decades. It concerns a claim that under the First Amendment, unionized government workers should not be forced to subsidize union speech to keep their jobs. This issue was to be decided in 2016’s Friedrichs v. California Teachers Association, but Justice Antonin Scalia’s death left the court in a 4-4 deadlock.
Most court observers expect Justice Neil Gorsuch to break this tie in Janus, so they sought to discern his views on labor matters from the recently decided Epic Systems v. Lewis case. (That decision concerned how the National Labor Relations Act and the Federal Arbitration Act interact.) The most interesting part about Janus to date, however, is what public sector unions and their allies are doing.
Epic Systems was a 5-4 decision that split along what many see as a conservative/liberal fault line on the Supreme Court. The majority held that employees could agree to settle wage disputes by using arbitration on a case-by-case basis. The majority also said that employers could use these “waiver” agreements to prevent any lawsuit (class action or individual) on the alleged activity. While the majority recognized that some could differ on the economic efficacy of arbitration, it held that Congress had meant to allow businesses to use litigation waiver agreements. Justice Ruth Bader Ginsburg and the other dissenters would have held that the waiver agreements were “armed-twisted” and therefore unenforceable. The dissent discussed the history of the NLRA at length and compared the litigation waivers to “yellow-dog contracts,” which prohibited employees from joining labor unions and have long been illegal. The dissent also used the judicial insult of “invoking the specter of [Lochner v. New York],” where the court overturned a law placing a daily and weekly hour limit on bakers.