Nearly two-and-half years ago, then-Illinois civil servant Mark Janus, with the assistance of a legal team led by National Right to Work Legal Defense Foundation staff attorney Bill Messenger, won a landmark U.S. Supreme Court victory.
In Janus v. AFSCME Council 31, the High Court recognized, for the first time, that it is flat-out unconstitutional for government union chiefs and public employers to cut deals forcing civil servants to pay for the advocacy of a union they would never voluntarily join, or be fired. Janus overturned the Supreme Court's ruling in another Foundation case, 1977's Abood v. Detroit Board of Education. Abood misguidedly gave a judicial wink to forced financial support for government unions' bargaining-related activities when union officials are granted monopoly power to "represent" employees who don't want a union along with those who do.
Unfortunately, the Janus protections afforded by the Supreme Court are now in danger of being eradicated if Democratic politicians Joe Biden and Kamala Harris become, as most pundits predict, the next president and vice president of the United States.
Biden has publicly declared that he supports changing federal policy so that "there is no Right to Work [without being forced to bankroll a union] allowed anywhere in the country." And Harris bitterly condemned Janus itself within minutes after the decision was announced. It is a "basic American premise," she preposterously insists, that all workers who are subject to union monopoly-bargaining control should be forced to bankroll the union as a job condition, whether or not they personally benefit from unionization.
With the October 26 Senate confirmation of Trump appointee Amy Coney Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg, there is now likely a 6-3 high court majority in support of upholding Janus.
But the decision would still not be safe during a Biden administration, because key power brokers within Biden's political party are already clamoring for Democratic elected officials to ram through legislation adding multiple seats to the Supreme Court in 2021 should they control both chambers of Congress and the White House.
Biden ally and former U.S. Solicitor General Charles Fried, a longtime foe of free-speech protections for Big Labor-ruled workers, has even explicitly cited Janus reversal as a key rationale for "court packing."
In an interview aired by 60 Minutes on October 25, Biden himself upbraided federal courts, including the Supreme Court, for "getting out of whack," and vowed if elected to handpick a "national commission" (perhaps including Fried!) to make "recommendations" on how to remold the judiciary rapidly that may well include court packing. They could also include a scheme, publicly floated by Biden on October 26, that would empower him to shift Supreme Court justices to lower courts.
If Biden, Harris, and their allies in Congress expand the number of high court justices from nine to 13, paving the way for the appointment of four extra Big Labor-"friendly" justices over the course of just a few years or even a few months, Janus will be unlikely to survive long. What will that mean for American workers?
Under Janus, as Justice Samuel Alito explained in his majority opinion, government employers across the U.S. are prohibited from deducting union dues or fees from employees' paychecks unless the employees "clearly and affirmatively consent before any money is taken from them ..."
If a high court packed by Biden and Harris overturns Janus, compulsory employee payments to unions as a condition of getting or keeping a government job that interfere with the personal freedom to associate for the advance of ideas, or to refrain from doing so, will once again be given a judicial green light.
Mark Mix is president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee. Mix began working for the National Right to Work Committee in 1990, becoming Executive Vice President before being named President of both the Committee and the Foundation in 2003. To read more of his reports — Click Here Now.
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