News & Commentary

June 28, 2018

Maddy Joseph

Maddy Joseph is a student at Harvard Law School.

“The day that organized labor has been dreading for several years is finally here,” Sarah Jaffe writes at the Times’ opinion page.  Jaffe is one of many arguing that workers and their unions must get back to basics — to old fashioned organizing, to strikes modeled on the recent teacher actions — in order to maintain and build power in Janus’s wake.  As one take in the socialist magazine Jacobin puts it, “Public-sector unions now have two choices: continued decline, or a reversion to the kind of militant collective action of the movement’s early years.”  At the Atlantic, Alana Semuels gives hope that gains are possible, telling of the strengthening of the United Domestic Workers of America, which represents home care workers, in the wake of Harris.

The Times editorial board, cautioning that there are “no easy or quick responses” to the longstanding assault on unions, calls on states and localities to fight back.  The editorial urges legislation allowing unions easy and early access to new public employees.  And, citing Professor Sachs’s recent article on agency fees, the Times urges: “State and local governments could solve the problem created by the Supreme Court’s Janus decision by paying unions directly for their expenses and reducing worker pay by an equivalent amount.”  At Vox, Professor Sachs and Sharon Block similarly call on states to make this change to how they account for agency fees.  Aaron Tang presses the same solution at Take Care, highlighting how it could even have tax benefits for workers.  Eugene Volokh also endorses this “workaround” at Reason.

Less optimistic is Mark Joseph Stern at Slate.  He predicts, as he did before Janus (and Professor Sachs questioned here), that the legal fight will now move to unconstitutionalizing agency fees in the private sector — and that anti-labor forces will succeed there as well.  “Given the ruling in Janus, if these dues force anti-union workers to subsidize union activity, how can [a private-sector bargaining] contract be constitutionally enforced in court?,” he asks.

Stern and others highlight Janus’s partisan valence.  The Republicans are winning their long war on unions, say commentators at the Nation, the Washington Post; even the Solicitor General of Virginia, a state that had supported the union, joins this chorus at SCOTUSblog.  At the American Prospect, Harold Meyerson terms Janus the grandson of Lochner and the son of Bush v. Gore, the latest in what he sees as the Court’s project to “deliberately bolster Republicans’ electoral prospects.”  Indeed, Bloomberg already reports that the Koch Brothers are funding a grassroots effort to get public sector employees to leave their unions now, in advance of the 2018 midterms.

More optimistic are those who see a possible legal “silver lining.”  AFL-CIO General Counsel Craig Becker writes at CNN: “The silver lining here for public employees is that the ruling should amplify free-speech rights on the job, including freedoms to voice concerns about wages, hours, benefits and working conditions. . . .  Janus brings the First Amendment directly into the government workplace.”  The National Education Association’s GC, Alice O’Brien, makes a similar point at SCOTUSblog.

Taking a wider lens, some focus on how Janus threatens more than just bargaining power, the workplace, or even workers.  At Dissent, Joseph McCartin warns that Janus isn’t just bad for unions — it could be devastating for democracy.  “For most of the twentieth century,” he writes, “the advance of political democracy went hand in hand with efforts to make the workplace more democratic.”  Law Professor Jed Purdy at the Times and historian Gabe Winant at the Nation also contextualize Janus and the predicted aftermath in the “longer historical arc” of worker politics, inequality, and democracy.  “Democracy treats people as equals,” Purdy writes, “An economy that makes them increasingly unequal undermines it.” But, he continues, “A different law of economic power is possible”; it’s just not a “task[] for the Supreme Court” but one “for better legislators and presidents — and for scholars, unions and mobilized citizens.”

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