In an historic blow to working class people and their organizations, the United States Supreme Court issued a 5-4 decision in Janus v. AFSCME Council 31 last week, overturning Abood v. Detroit Board of Education, the landmark 1977 case giving public sector unions the right to collect agency, or “fair share,” fees from non-members. The decision, which will gravely challenge public sector unions as we know them, has been lamented (or, in some conservative circles, touted) as the “death knell” of organized labor and the U.S. labor movement.
There can be no question, in light of the decision, that organized labor as we know it must evolve. However, there are more reasons to believe that labor will adapt, and perhaps even grow stronger. The Supreme Court and the entire U.S. legal system have rarely been on the side of the U.S. working class, yet workers have continuously organized without the support of the law and, in fact, sometimes against the law. Some of labor’s greatest victories were on the heels of labor’s greatest legal defeats.
This moment gives us an opportunity to recognize that the courts are generally the opponents, not the allies, of the working class. With Justice Kennedy’s retirement announcement and a looming appointment to fill this vacancy, the fate of workers and their movements before the courts will face uphill battles for decades to come. But the labor movement, and other movements of working class people, has what it has always needed to win: its people.
BACKGROUND: WHY DOES JANUS MATTER?
Since the passage of the Wagner Act in 1935, most American workers have had the right to democratically elect a labor union to represent them in their workplaces. Once a union is certified by a group of workers (called a “bargaining unit”) by a majority vote of those workers, the union has the right of “exclusive representation”: management is legally obligated to recognize and negotiate with the union, and can only negotiate with that union about the wages, terms, and conditions of employment for that group of workers.
Since the Supreme Court decided Ford Motor Company v. Huffman in 1952, unions have had a duty that corresponds to the right of exclusive representation: the duty of fair representation. This means that unions must represent all workers in a bargaining unit equally, whether or not those workers are members of the union. In 22 states, plus the District of Columbia and Puerto Rico, unions have been allowed to charge an “agency fee” to non-members to cover the cost of this representation.
In Abood, the case that was just overturned, the Supreme Court found that unions in the public sector – that is, unions that represent state, county, or municipal government workers – are allowed to charge agency fees, as long as the fees collected by non-members are only spent on costs related to contract negotiation and administration (and not, for example, on supporting political causes or campaigns). After Janus, public sector unions are no longer able to charge non-members agency fees for the cost of representation.
Associate Justice Elena Kagan points to the basic economic problem for unions who cannot charge agency fees in her blistering dissent, a problem often called the “free rider problem”: “Without a fair-share agreement, the class of union non-members spirals upwards. Employees (including those who love the union) realize that they can get the same benefits even if they let their membership expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)–so they too quit the union.” The scenario Justice Kagan describes has been the waking nightmare of the last decade of the labor movement. But what if this crisis is also a beginning?
THE COURTS HAVE ALWAYS (MOSTLY) BEEN AGAINST US
The first permanent union in the U.S. was organized by shoemakers in Philadelphia in 1794. A dozen years later, in 1806, eight leaders of that union were tried and convicted of a “criminal conspiracy to raise wages.” For nearly forty years after this trial, the “conspiracy doctrine” was the law of the land: any two or more workers who joined together to raise their wages or otherwise improve their working conditions could be convicted of a criminal conspiracy. Labor unions were illegal.
In Commonwealth v. Hunt (1842), the Massachusetts Supreme Court overturned the conspiracy doctrine; it was no longer an illegal criminal conspiracy for workers to form unions. But the primary tactics unions used to organize for better wages, including workers’ most powerful weapon, the strike, were declared illegal disruptions of private commerce for almost one hundred years following Commonwealth.
Despite these legal obstacles, workers organized and won countless victories prior to the passage of the 1935 Wagner Act, which gave workers the right to organize and the right to strike. The adoption in many industries of an 8-hour work day; child labor laws; and the Wagner Act, itself, are all examples of sweeping changes workers won through organizing without the protection of, much less blessings from, the courts.
The legal landscape was even more bleak – and the gains, even more impressive – when you acknowledge that millions of the earliest American workers were enslaved. As scholars and observers of African-American history have noted, including Dr. Chanda Prescod-Weinstein, “[A]bolitionists lost every single SCOTUS case[…]and chattel slavery is over now.” The abolition of slavery remains the most radical change in social, political, and economic organization of the country in the history of the United States. The movement to abolish slavery, which enjoyed considerably less financial and legal support than the contemporary U.S. labor movement, never won a single case at the Supreme Court. Clearly, movements by and for working people do not need the favor of the Court to affect enormous, sweeping changes in the United States.
THE END THAT IS A BEGINNING
Literary critics and poets of the U.S. labor movement should celebrate that the plaintiff in the case that will fundamentally challenge the movement in its current form is named Mark Janus. Janus is the Roman god of doorways; transitions; endings and beginnings. As the U.S. labor movement crosses the threshold from its old form of organization, there are many reasons to believe that something new, and perhaps even better, is on the other side.
One criticism of the last fifty years of American unionism is that unions have become too invested in maintaining their own legal and bureaucratic infrastructure at the expense of organizing. The best unions have taken this criticism seriously and, seeing the writing on the wall at the Supreme Court since at least Knox v. SEIU, have committed themselves to re-energizing and reorganizing their members. Education Minnesota, the largest public sector union in Minnesota, launched an ambitious and successful internal organizing effort. In addition to a statewide campaign to have every worker in the bargaining unit sign or re-sign a membership card, Education Minnesota developed a curriculum to help every member connect with their own reason for being part of the union. Their membership numbers immediately post-Janus are higher than ever.
Other public sector unions have similarly seized this opportunity to shift their focus, and invigorate members, through widespread internal organizing campaigns. If these efforts are sustained, not only will public sector unions survive, but they will thrive. An organized, energized membership will be poised to win far more at the bargaining table and in the streets than a union with a disorganized membership and hundreds, or even thousands, of fee payers.
Finally, the wave of teachers’ strikes in 2018 proved that workers will take their demands to the streets, with or without the protection of the law, the courts, or even a union. All of the major statewide teachers’ strikes in 2018 were not legal, and all of them ended with significant gains for teachers. Like the Roman god, the aftermath of Janus has two faces. Complacency (and reliance on the courts) will be the death of us. Organizing will be a new beginning.
About the author:
Amy Livingston is an Instructor with Labor Education Service and the Center for Human Resources & Labor Studies at the University of Minnesota’s Carlson School of Management.
 “Agency fees” are often called “fair share fees,” especially in the public sector.
 Janus v. AFSCME Council 31, 585 U.S. ___ (2018) (5-4 decision) (Kagan, J., dissenting).
 @IBJIYONGI. “I tweeted this earlier today but just going to say again: abolitionists lost every single SCOTUS case. every single one. John Brown failed. And chattel slavery is over now.” Twitter, 27 June 2018, 1:49pm, https://twitter.com/IBJIYONGI/status/1012045176389300225.
 Another notable, successful example of this work in Minnesota is AFSCME Council 5’s implementation of the International’s “AFSCME Strong” campaign.