Alito’s folly, part 1: SCOTUS Janus ruling undermines democracy
Justice Samuel Alito | Cliff Owen/AP

2019 ILCA PW Winner, THIRD PLACE Best Series

The Supreme Court’s long-awaited decision last Wednesday in the Janus case, ruling that public sector unions can no longer charge agency fees or “fair share” dues to non-members who nonetheless benefit from union representation, certainly poses a serious though not insurmountable fiscal challenge to public sector unions and, by extension, to the ability of public sector workers to have a strong voice in their workplaces.

Beyond simply pointing out how the ruling threatens to weaken unions by assaulting their financial bases, though, we need also to analyze the multiple rationales Justice Samuel Alito summoned in support of the decision in order to understand precisely how the ruling re-frames basic democratic norms and distorted, or outright ignored, the realities of social power dynamics. Not challenging these distortions and re-framings, we risk letting them become normalized such that our standards of justice become turned on their head and Americans come to accept black as white, down as up, oppression as freedom, oligarchy as democracy, and so forth. This task is, unfortunately, too often the order of the day living in the age of Trump.

Treating all of the intricacies of Alito’s argument and Justice Elena Kagan’s dissent is too large a job for one article, so I’ll break down different components of these arguments in installments.

One of the first points to address is the way Alito theorizes the relationship between the First Amendment and democracy in framing the argument that public sector unions charging agency fees to non-member workers violates those workers’ First Amendment rights by effectively compelling them to support speech with which they don’t necessarily agree. The idea is that since public sector unions, in the act of collective bargaining with government entities, are engaging in political speech because the outcomes of this bargaining impact state budgets which in turn influences policies by potentially affecting a state’s ability to serve citizens in other ways or to cultivate the fiscal health of the state.

But let’s think about this argument in terms of the way our democracy works, particularly in fiscal terms. The American democratic polity is structured as an electoral system. Citizens vote for candidates, and the candidates for whom they vote may or may not win election to a representative office that allows them to make decisions that impact the lives of all citizens, whether citizens voted for those candidates or not. Sound familiar?

Now, fiscally speaking, this political structure and our civil society overall are supported through a system of taxation, and paying taxes is compulsory. We don’t pay taxes to support only those policies or expenditures with which our own individual belief systems align. If that’s the way it worked, I can assure you my tax bill would be much lower, as I wouldn’t have been paying for trillion dollar foreign wars, prison systems, or Scott Pruitt’s telephone booths, among other expenditures. But it would be a long-distance outlier position to argue that my having to pay taxes that fund policies or programs I don’t individually support constitutes a violation of my First Amendment rights. Henry David Thoreau, of course, famously refused to pay taxes to support what he viewed as injustices in which the government engaged. He urged others to do so as well. And he also acknowledged he was breaking the law in doing so and understood he rightfully belonged in prison. The point is, as citizens in a democracy, we have choices. We can participate in the process or protest to bring about change, or we can leave the country. Taxation, as our founders famously fought for, guarantees us representation, not that we get our individual ways in the collective structures we inhabit.

Now, let’s transfer this discussion to the unionized public sector workplace. First, let’s acknowledge the workplaces become unionized not because some tyrannical, bullying union comes in and imposes its structure on workers. Unionizing a workplace is often an uphill battle with a high benchmark for democracy. The majority of workers must vote to unionize, and they thus become the union, bonding together collectively for representation. Typically, elections are held to choose leadership and officers to represent the workers. To support the union, the workers whom the union represents pay dues, whether workers officially fill out a membership card or not, because they are receiving representation which the union is obligated to provide for them, whether they are members or not.

In short, the union is a democratic structure. One might argue employees are not the same as citizens, but it seems difficult to argue in such a democratic structure they don’t have the same First Amendment rights citizens have in a democracy, such that Alito in writing the decision over-extends in his comprehension of First Amendment rights.  Workers can participate, advocate, and work to shape the union and collective bargaining platforms and other policy matters, but as in any democratic structure the member or citizen is not guaranteed every policy, program, or bargaining piece will reflect one’s individual wishes or beliefs. As citizens pay taxes to support a system, not guarantee an outcome, so union members pay to support a representative structure as well. The member is guaranteed representation, not a 5 percent raise.

So, just as citizens have choices, so do employees in a public sector unionized workplace. They can work to shape their union and its policies.

And—here is a big point Alito misses—they can choose not to work in a unionized shop.  Alito, while generally formulating his arguments within the context of capitalist thought and political economy, neglects to consider that capitalism imagines freedom as the right to bring one’s labor freely to market. If Mark Janus does not want to contribute to a collective bargaining structure, then he can exercise his freedom within capitalist society to sell his labor elsewhere. In some sense, if his First Amendment rights were violated, he did it to himself.  Indeed, Alito quotes the petitioner, Janus, who “argues he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”  But here’s the thing: Janus hopped on the bus voluntarily.  He wasn’t forced into involuntary labor. He conceivably could have sought work elsewhere in a workplace organized–or not organized–more in line with his beliefs.   He’s more like a Christian entering a mosque, claiming his religious liberties are being violated because the worshippers are practicing Islam.

The main point here, though, is that even framing the issue of charging non-members an agency fee as a First Amendment issue is an untenable stretch, but Alito simply ignores the reality of how free speech and democracy relate, particularly in fiscal terms.  Alito, in large part, dismisses, even disdains, democracy.

Justice Elena Kagan was most succinct and incisive in her dissent when she accused the majority in the court “turning the First Amendment into a sword.” She astutely points out, “Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it).” Thus, she sees this ruling and its leveraging of the First Amendment as opening up possibilities for instituting repressive measures rather promoting freedom, writing, “The majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.” She concludes re-asserting that the First Amendment “was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”

Alas, Alito either misunderstands or simply disrespects democracy.


Tim Libretti
Tim Libretti

Tim Libretti teaches in the English Department at a public university in Chicago where he lives with his two sons.