Exclusive Representation and the First Amendment


Published February 13th, 2019 - 02.13.1983


In Janus, the Supreme Court held that the First Amendment prohibits mandatory agency fees in the public sector. Although Janus had nothing to do with the constitutional status of exclusive representation, the majority’s opinion mentions exclusive representation several times. For example, Justice Alito writes for the Court:

Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union. . . .

And, most pointedly, the majority states:

It is [] not disputed that the State may require that a union serve as exclusive bargaining agent for its employees – itself a significant impingement on associational freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views.

This language is unmistakably similar to the phrasing Justice Alito used in Knox v. SEIU. There, in a case where the constitutionality of agency fees was not at issue, Alito repeatedly called agency fees an “impingement” on First Amendment rights. He also named Abood an anomaly that would not be tolerated in other contexts. These gestures in Knox were widely understood as presaging the Court’s overruling of Abood, which it did in Janus. Hence, the denigration of exclusive representation in Janus’s dicta has raised alarms about the future First Amendment status of this core principle American unionism – at least in the public sector.

The alarm bells got slightly louder when, in late January, the Court called for a response to the cert petition filed in Uradnik v. Inter Faculty Organization. That case involved a direct challenge to the constitutionality of exclusive representation in the public sector. In Uradnik, as in Bierman v. Dayton, the 8th Circuit rejected the constitutional challenge to exclusive representation, relying primarily on the Supreme Court’s opinion in Minnesota State Board for Community Colleges v. Knight. (On February 1, the Court also called for a response to the cert petition filed in Bierman.)

Should the Supreme Court overrule Knight (a precedent of 35 years) and declare exclusive representation unconstitutional, it would confirm again what Justice Kagan decried in Janus: that the First Amendment has been weaponized in a manner that “unleashes judges” to implement their favored labor policy – a policy that seems to mirror what the National Right to Work Committee would like to legislate. There may be much more to say about all this.

For now, I will just report what we know about the significance of the Court’s call for response in Uradnik. According to a 2009 empirical study by David Thompson and Melanie Wachtell (the merits of which I am not equipped to evaluate), the Court issues about 200 calls for response (CFRs) per term. So, this is far from an uncommon practice. But the rates of certiorari in cases where the Court has issued a CFR are significantly higher than in cases without a CFR. As Thompson and Wachtell put it:

Looking at only the paid docket, a grant is about 4 times greater following a CFR; the grant rate increases from 4.2% to 16.9% (i.e., 57 grants out of 338 cases with a CFR).

So, assuming things have not changed much since 2009, the fact that the Court has issued a CFR in Uradnik means that the likelihood of the Court taking the case has gone from about 4% to about 17%. This means that the odds are still heavily against certiorari, but not as heavily as they were a few weeks ago.

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