WASHINGTON — A deeply divided Supreme Court dealt a major blow to the nation's public employee unions Wednesday that likely will result in a loss of money, members and political muscle.
After three efforts in 2012, 2014 and 2016 fell short, the court's conservative majority ruled 5-4 that unions cannot collect fees from non-members to help defray the costs of collective bargaining. Justice Samuel Alito wrote the decision, announced on the final day of the court's term, with dissents from Justices Elena Kagan and Sonia Sotomayor.
President Trump wasted no time claiming the decision would help Republicans at the polls. "Big loss for the coffers of the Democrats!" he tweeted.
About 5 million workers could be affected by the decision overruling the court's 1977 decision in Abood v. Detroit Board of Education — those who pay dues or "fair-share" fees to unions in 22 states where public employees can be forced to contribute. Workers in 28 states already cannot be forced to join or pay unions.
"We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term and may require unions to make adjustments in order to attract and retain members," Alito wrote. "But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years."
From the bench, he noted that Illinois, whose Republican governor initiated the challenge, "has serious financial problems" that are exacerbated by costly union contracts. Gov. Bruce Rauner has sought to renegotiate public employee contracts.
Kagan's main dissent for the four liberal justices accused the court of "weaponizing the First Amendment in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy."
"It wanted to pick the winning side in what should be -- and until now has been -- an energetic policy debate," she wrote. "Today, that healthy -- that democratic -- debate ends. The majority has adjudged who should prevail."
Justice Neil Gorsuch cast the deciding vote against what conservative opponents have labeled a form of compelled speech. The money helps labor unions maintain political power in some of the nation's most populous states, including California, New York, Illinois, Pennsylvania and New Jersey.
Gorsuch, who had remained silent during oral argument in February, was the key because the court had deadlocked in a similar case two years ago following the death of Justice Antonin Scalia. The newest justice recently authored the court's 5-4 ruling that denied workers the right to join together in class action lawsuits rather than submit employer-sponsored arbitration.
The ruling completed a 4-for-4 sweep for the Trump administration in which the Justice Department switched sides from the positions taken during the Obama administration. "The favorable Supreme Court decisions in all four cases reflect that we took the proper course of action," Attorney General Jeff Sessions said.
The 2016 case challenged a powerful teachers union in California; the new one targeted state employees in Illinois. But the threatened impact was the same: elimination of fees paid by police, firefighters, teachers and other government workers who don't join the unions that represent them.
The landmark ruling overrules the court's own 41-year-old precedent, which said workers did not have to pay for unions' political activity but could be required to contribute to other costs of representation, such as wage and benefit negotiations and grievance procedures.
The court's decision frees those non-members from the fees, but unions also are braced to lose some dues-paying members who stand to save more under the new rule. That could force unions to raise dues on those who remain.
"It is shameful that the billionaire CEOs and corporate special interests behind this case have succeeded in manipulating the highest court in the land to do their bidding," leaders of the nation's four major public employee unions said in a statement. "This case was nothing more than a blatant political attack to further rig our economy and democracy against everyday Americans in favor of the wealthy and powerful."
The case, Janus v. American Federation of State, County, and Municipal Employees, was backed by conservative groups that have tried for years to overturn the court's 1977 decision upholding the fees for collective bargaining but not for political action.
"Today’s decision is a landmark victory for rights of public-sector employees coast-to-coast that will free millions of teachers, police officers, firefighters and other public employees from mandatory union payments," said Mark Mix, president of the National Right to Work Legal Defense Foundation.
The court ruled 7-2, 5-4 and 4-4 on three similar cases in the past six years, eating away at the 1977 decision without overruling it entirely. In 2016, Scalia's death a month after oral arguments denied conservatives their fifth vote.\
Kagan referred to her conservative colleagues' "six-year crusade" in her dissent, part of which she read from the bench. “Today’s decision will have large-scale consequences,” she said, not only by blowing up collective bargaining agreements but by undermining the judicial process by reversing earlier decisions.
The decision comes at a time when 61% of Americans approve labor unions -- the highest rating in Gallup polls since 2003 -- and teachers' strikes have roiled states from West Virginia and Kentucky to Oklahoma, Colorado and Arizona.
"The fictional narrative of labor’s downfall is being upended by the reality working people are creating for ourselves," AFL-CIO President Richard Trumka said recently. "No matter the outcome of this case, millions of workers will continue to stand together to build a stronger, fairer America."
It remains unclear what impact the ruling will have on organized labor in general, which has suffered a 70-year decline in union membership. The nation's roughly 15 million union members make up less than 11% of the workforce, a drop from 35% during World War II. The decline is magnified in the private sector, where only 6.5% of workers remain unionized.
In the public sector, more than one in three workers belong to a union, a percentage that has held relatively steady for decades. AFSCME, the National Education Association, Service Employees International Union and American Federation of Teachers now face a likely loss of members.
Some groups that have fought to end compulsory fees argue that unions can stave off membership declines by better representing workers. They cite data from states such as Indiana and Michigan after the enactment of right-to-work laws.
