In this stunning decision, the supreme Court overturned existing precedent, (referred to as “stare decisis” which is Latin for “let the decision stand”) to find that mandatory collection of agency fees from those who choose not to join public sector unions is a violation of their First Amendment rights.

Court Opinion

The short version of the court’s opinion is:

The State’s extraction of agency fees from nonconsenting publicsector employees violates the First Amendment.


Even though a previous court in Abood v. Detroit Bd. of Ed., found that state collection of agency fees was constitutional, this court found that

Abood’s holding is inconsistent with standard First Amendment principles.


The reasons given in the Abood case for permitting agency fees were twofold.  The first was to promote “labor peace”.  The court feared that allowing more than one representative for employees could lead to conflicts between the representatives.  This court found that, since the federal government and 28 states currently allow multiple representatives without conflict or disturbance, there are less restrictive ways to insure labor peace than forcing only one group to represent them.

The second reason the Abood court found agency fees constitutional was to avoid the risk of “free riders”, or those who would benefit from the union’s negotiations without paying dues.  However, this court found that the avoiding of free riders was not a compelling state interest and therefore insufficient to overcome the First Amendment objections.

So while previous courts (blatantly incorrect in my opinion) allowed the forced collection of agency fees as a requirement for employment, this court correctly put the actual words and meaning of the Constitution above their usual deference to stare decisis.


Sotomayor’s Dissent

Sotomayor’s dissent is a simple paragraph stating that she agrees with Kagan’s dissent and an accusation that the court is wielding the First Amendment in “an aggressive way”.  Apparently applying the actual words of the Constitution is considered aggressive to her.

Kagan’s Dissent

Justice Kagan, in her dissent, which was joined by Justices Ginsburg, Breyer, and Sotomayor, sees Abood in a very different light.

Justice Kagan believes that Abood

struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper.  Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.

Kagan’s Dissent

I guess Justice Kagan believes that being forced to contribute to an entity as a requirement of employment is fair, or at least as long as the employee works for the government.  I wonder if Justice Kagan would feel the same way if she was required to pay into an agency as a requirement of sitting on the supreme Court?  If what the union provides to it’s members is not sufficiently attractive to an employee to join, why should the state make contributing to that union a requirement for employment?

That holding (Abood) fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively.

Kagan’s Dissent

Apparently Kagan, along with members of earlier courts and her fellow dissenters, were quite comfortable with the idea that the terms of employment should include where to spend part of the money earned in said employment.  The idea that the government can tell its citizens what groups it has to be a member of or where they have to spend their money as a condition of holding a public job is abhorrent not only to the free speech rights of those employees, but to the general idea of a limited government.  It is one thing to direct what an employee says while on the job, it is quite another to force them to support groups they disagree with.  As Justice Alito noted in his opinion

Nor does the union speech at issue cover only matters of private concern, which the State may also generally regulate under Pickering. To the contrary, union speech covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights


I am disturbed by the dissenting Justices’ opinion of stare decisis

Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis.

Kagan’s Dissent

It appears that the justices holds precedence in such high regard that we should uphold both Korematsu (Japanese internment) and Dredd Scott (slaves are property) since neither decision has been overturned and is therefore legal precedent.  Funny, how stare decisis was not an issue when the court decided to overturn millennia of precedent for the definition of marriage.


In the Janus decision this court overturned a long standing error of previous courts.  Rather than upholding this travesty of justice in the name of stare decisis, this court recognized that it is wrong for governments to force people to pay for something they do not want.  I wish the court in King v Burwell had recognized the same issue in Obamacare.

Author: Paul Engel

Paul Engel founded The Constitution Study in 2014 with the goal of helping everyday Americans read and understand their Constitution. Author, blogger, podcaster and speaker, Paul writes and podcasts at You can also find his books at

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