Date of Degree

2-2022

Document Type

Thesis

Degree Name

M.A.

Program

Political Science

Advisor

Thomas Halper

Subject Categories

Labor Relations

Keywords

SCOTUS, JANUS, Labor, Law, Unions

Abstract

In the days after the Supreme Court handed down its ruling in Janus v. AFSCME (2018)—a 5-4 conservative majority decision deeming the imposition of public union agency fees unconstitutional under the First Amendment—observers declared the end of public-sector unions. The Times called the ruling a “Sharp Blow ''[1] to organized labor. A Washington Post headline deemed the decision a “major blow”[1] [2] In the former piece, the Time’s Supreme Court correspondent wrote that “most of the labor movement’s strength these days is in the public sector. The [Janus] ruling contained a final blow for public unions, saying that workers must affirmatively agree to support them.” In a similar assessment, the Post’s legal reporter concluded that the decision was “a devastating if not unexpected, loss for public-employee unions, the most vital component of organized labor and a major player in Democratic Party politics.”

In either case, there was a consensus among the papers of record that the case would have serious, adverse consequences for public-sector unionization. The expectation was that union members would stop paying union fees because they would benefit from the union’s collective action whether they paid or not.

In three years since the decision, membership rates have not decreased significantly, and unions have not seen a steep decline in funds. While the worst has been avoided, it is not clear that we are out of the woods yet.

This paper is an effort to provide a deeper, more nuanced understanding of Janus and its implications—an understanding only possible when viewing the case through three distinct lenses: American political development, American political thought, and political theory.

This paper has three main contentions and is divided into three different subfields (I) The workplace is a source of oppression—worker precarity is evident especially in the post-9/11 American economy. Collective action is a solvent, one still supported by both union members and non-union members alike as it is more important now than ever. We must first understand why unions are essential before we can understand either the threat the ruling in Janus posed or the responses of the unions who sought to blunt its effects. These responses may be considered at least partially responsible for why the decision had a far less intense effect than expected. (II) On the other hand, we must understand the Janus decision as part of a long history, and we must look at the development of the court’s relationship with unions to understand how deeply ingrained unions are in the culture, which may also explain why the effects of the decision never materialized. This explanation suggests that inertia has not yet allowed change to be made evident but would suggest the ruling is more effectively understood as a signal for future action rather than an immediate change. (III) If the decision represents a signal for future, we must seek to clarify the ideology underlying the ruling to understand what the signal may foretell. The Roberts Court’s in general and the Janus decision have primarily been understood through comparison to the Lochnerera in scholarship; the through lines are not as apparent as they seem, and a more nuanced comparison begets critical distinctions. I will include a collection of literature on the Lochner era, allowing scholars to see competing points of view laid out in a single chapter, to sharpen our understanding of exactly how different and dangerous the Janus decision is if not in direct effect, then in the implication of what future decisions may come from the Roberts Court.

The first chapter will consist of an analysis of the attitudes of public sector union members rooted in Judith Butler’s ethics of precarity and Emmanuel Levinas’s conception of “the face.” I will use this text then as a basis to interpret the unions’ responses to the Janus ruling to see how they effectively retained the great majority of their membership and dues.

In the second chapter, I aim to provide a history of and explain conservative backlash to public sector unionism in the United States. I will then zero in on Janus in particular, situating the decision and its impacts in the political and legal developments of the labor movement.

In the third chapter, I will explore the Janus case through the lens of American political thought. I will juxtapose the Freedom of Contract milieu of the Lochner era with the Roberts’ Court pro-business track record in general and in Janus in particular. Comparisons have been made between the two. I will attempt to reframe the simplistic argument made by commentators that decisions like Janus represent a reintroduction of Lochner era jurisprudence. This view elides key distinctions; I hope to accentuate them here to reveal the full extent of the decision’s departure from the court’s past treatment of unions.

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