Alito’s folly, part 2: SCOTUS abuses history in Janus decision
Justice Samuel Alito | Cliff Owen/AP

Read Part 1 of this article here.

The Supreme Court’s recent ruling in the Janus case, ordering that public employees cannot be required to pay agency fees to unions that might represent them, poses a significant challenge to the fiscal health of public sector unions. This is certain. Unions, of course, can overcome this obstacle through assiduous organizing efforts in the workplace that educate employees about the protections, benefits, and better wages unions have historically gained for workers.

In evaluating the ruling, though, we also need to look more deeply into the rationales Justice Samuel Alito provided as these rationales dangerously re-frame issues of democracy, free speech, workplace rights, and other policy matters. They will potentially have long-term consequences given that the arguments, as well as the final decision, live on as precedents that guide and bind future courts.

One of the most contrary or perverse elements of Alito’s reasoning is the way he treats history.

As one example let me note Alito’s treatment of the “free-rider” justification for requiring non-union members to pay agency fees to fund collective bargaining. A typical argument for non-members paying dues compares them to those riding public transportation: you don’t get to argue when you get on the bus that since it’s going downtown anyway, you shouldn’t have to pay.

Alito, however, endorses the absurd position, as he writes “that [Janus] 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.”

This argument presents a flaw in Alito’s historical thinking. It doesn’t go far enough back in history. People who suffer enslavement or being “shanghaied” do not step onto the ship voluntarily. We have to consider Janus’s position before he entered the workplace. He freely entered a unionized workplace with a set of labor agreements and collective bargaining processes in place. Nobody forced him, or “shanghaied” him, to step onto that ship, into that workplace. He exercised his freedom in doing so, in bringing his labor freely to market, as the capitalists like to say. Moreover, as I’ve written about elsewhere in the pages of People’s World in the context of Colin Kaepernick’s protests, workers typically do not enjoy First Amendment rights in the workplace, except in a very limited way. Workers can choose their workplaces to some extent but really have no expectation of First Amendment rights such as Alito grants Janus.

A more egregious abuse of history, however, is when Alito invokes the historical conditions in which the Janus case was filed. He argues that the collective bargaining in itself constitutes political speech because it impacts public spending and state budgets, which in turn affects the lives of citizens in the state. Alito argues that “the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role” in mounting state-spending increases. And he continues, “We are told, for example, that Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages,” while also invoking the tired mantra that “unsustainable collective-bargaining agreements have also been blamed for multiple municipal bankruptcies.”

Here Alito’s argument would not pass muster in a first-year college writing course. The tired ideological notes he hits about state worker benefits, salaries, and pensions being to blame for state budget crises are not evidenced. He says that agreements “have been blamed” for bankruptcies and that “we are told” Illinois’ pension shortfalls are due to overly generous retirement packages. Because people “blame” collective-bargaining agreements for state budget woes and “tell” us it is so, does not make it so.

Take Illinois as an example. The reason for the pension shortfall is that the state simply stopped making its requisite payments to the pension systems back in the 1990s. So, yes, the underfunded pensions have created a serious budget problem for the state, but it’s not because of overly generous pensions; it’s because of state malfeasance. Even the Better Government Association of Illinois, long a pension watchdog, has come to this realization. Additionally, because Illinois opted out of Social Security at its inception, state workers are not eligible for Social Security, meaning the state has more than likely saved well more than the $129 billion pension shortfall by never having to pay into Social Security.

Moreover, Illinois has one of the most regressive tax structures in the nation; and evidence shows if it had a tax structure more akin to states like Indiana and Wisconsin (namely, red states that are far from liberal), the state would not experience these budget traumas.

Alito, however, seems to prefer to rely on “hearsay” evidence in blaming the salaries and benefits of state workers for troubled state budget situations, rather than actually studying the historical reality of these situations he invokes and so erroneously characterizes. And this fabricated and un-evidenced narrative is no small part of his argument, as he argues that “these developments . . . have given collective-bargaining issues a political valence that Abood [the previous ruling upholding the right of unions to collect agency fees from non-members] did not fully appreciate.”

In short, his argument is deeply historically situated; yet he completely distorts that history.

What his argument effectively enables, though, is the behavior in which a state balances its budget on the back of state workers rather than finding other means, such as fairer systems of taxation, to fund the needs of the state. And the argument provides grounds for rewarding bad behavior. Illinois Governor Bruce Rauner, who initially tried to file the Janus case, refused to pass a budget for two years, with devastating effects for the Illinois economy and citizenry. By Alito’s logic, he should be able to use his own bad behavior as a tool in collective bargaining. Create a crisis, and then you have a reason to assault pensions and lower wages!

As one who works at an Illinois public university, I can tell you that young faculty have fled the state, and enrollments have suffered because of uncertainty about the fate of state institutions, given Rauner’s attack on their funding.

Making public institutions untenable by starving them of funding is basically an attack on the public sphere itself and paving the way for the privatization of state services, including education, for the profit of the wealthy at the expense of the people. This is where Alito’s thinking and his abuse of history take us.


Tim Libretti
Tim Libretti

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