George Will: With its Janus decision, the Supreme Court corrected itself on First Amendment freedoms
The Supreme Court is especially admirable when correcting especially deplorable prior decisions, as with the 1954 school desegregation decision rejecting a 1896 decision's “separate but equal” doctrine. It did so again June 27, overturning a 41-year-old precedent inimical to the First Amendment.
In 1977, the court upheld, 6-3, the constitutionality of compelling government employees who exercise their right not to join a union to pay “fair share” or “agency” fees. These supposedly cover only the costs of collective bargaining from which nonmembers benefit. But the payments usually are much more than half of, and sometimes equal to, dues that members pay.
The majority opinion in 1977 admitted something that was too obvious to deny and so constitutionality problematic that a future challenge was inevitable: “There can be no quarrel with the truism that, because public employee unions attempt to influence government policymaking, their activities ... may be properly termed political.” Everything public-sector unions do is political. Therefore, the 1977 decision made compulsory political contributions constitutional. Which made the court queasy.
By 2014, it was affirming the principle that doomed the 1977 decision and foretold the latest one: It is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Which is what the court now says regarding compulsory financial support of government-employee unions. Yet dissenting Justice Elena Kagan said: “The majority overthrows a decision entrenched in this nation's law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
How does Kagan err? Let us count the ways.
The First Amendment exists to prevent the people's representatives from making certain kinds of choices. Last month's decision was not about “workplace governance” or “economic and regulatory policy.” It was about coerced speech. And about denial of another First Amendment guarantee, freedom of association, which includes the freedom not to associate, through coerced financial support, with uncongenial political organizations. And judges are supposed to be unleashed to wield the First Amendment as a weapon against officials perpetrating such abuses.
The deadliest dagger in the decision was the stipulation that nonmembers' fees cannot be automatically deducted from their wages — nonmembers must consent to deductions. So, public-sector unions must persuade people. No wonder they are panicking.
Public-sector unions are conveyor belts that move a portion of government employees' salaries into political campaigns to elect the people with whom the unions “negotiate” for taxpayers' money. Progressives who are theatrically distraught about there being “too much money in politics” are now theatrically distraught that the court has ended coercing contributions that have flowed to progressive candidates.
George F. Will is a columnist for The Washington Post. His email address is firstname.lastname@example.org.