Under Illinois law, unions act as the exclusive bargaining representative for all employees in a unit, whether they join a union or not, and all employees, including non-union members, are required to pay a share of the unions’ collective bargaining costs. (Under Abood, non-union members are not required to contribute money for political activities or other union activities not connected to collective bargaining.) Mark Janus, an Illinois state employee, sued in federal district court, arguing that the share of costs that non-union members are required to pay amounts to compelled support of political speech in violation of the First Amendment. The district court rejected Janus’s argument, and the Seventh Circuit Court of Appeals affirmed its decision. Janus asked the Supreme Court to hear the case, and it agreed to do so.

CAC filed a friend-of-the-court brief in Janus on behalf of Republican current and former state and local officeholders in support of the constitutionality of public sector “fair share” arrangements. In our brief, we explained that the First Amendment does not deprive states of the power to enact agency-shop laws requiring government employees to pay their fair share of the costs of collective bargaining. Moreover, allowing States to determine for themselves whether to adopt agency fee arrangements is consistent with our Nation’s federalist structure and the authority of States to govern in areas where uniform national legislation is not necessary, so long as no other constitutional provision prohibits their action. The attempt to constitutionalize this aspect of labor relations is not required by the First Amendment and is inconsistent with the significant deference long accorded state judgments in this context.

In a 5-4 decision, the Court struck down public-sector “agency shop” arrangements. In her dissent, Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor, explained why the Court’s decision was at odds with the First Amendment and well-established case law on when Supreme Court precedent can be overruled. As she put it, the Court’s majority, in “overthrow[ing] a decision entrenched in this Nation’s law—and in its economic life—for over 40 years,” “subvert[ed] all principles of stare decisis.”