Janus v. State, County, and Municipal Employees

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JANUS v. AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES,
COUNCIL 31, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 16–1466. Argued February 26, 2018—Decided June 27, 2018
Illinois law permits public employees to unionize. If a majority of the
employees in a bargaining unit vote to be represented by a union,
that union is designated as the exclusive representative of all the
employees, even those who do not join. Only the union may engage
in collective bargaining; individual employees may not be represented
by another agent or negotiate directly with their employer. Non-
members are required to pay what is generally called an “agency fee,”
i.e., a percentage of the full union dues. Under Abood v. Detroit Bd.
of Ed., 431 U.S. 209, 235–236, this fee may cover union expenditures
attributable to those activities “germane” to the union’s collective-
bargaining activities (chargeable expenditures), but may not cover
the union’s political and ideological projects (nonchargeable expendi-
tures). The union sets the agency fee annually and then sends non-
members a notice explaining the basis for the fee and the breakdown
of expenditures. Here it was 78.06% of full union dues.
Petitioner Mark Janus is a state employee whose unit is represent-
ed by a public-sector union (Union), one of the respondents. He re-
fused to join the Union because he opposes many of its positions, in-
cluding those taken in collective bargaining. Illinois’ Governor,
similarly opposed to many of these positions, filed suit challenging
the constitutionality of the state law authorizing agency fees. The
state attorney general, another respondent, intervened to defend the
law, while Janus moved to intervene on the Governor’s side. The
District Court dismissed the Governor’s challenge for lack of stand-
ing, but it simultaneously allowed Janus to file his own complaint
challenging the constitutionality of agency fees. The District Court
2 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Syllabus
granted respondents’ motion to dismiss on the ground that the claim
was foreclosed by Abood. The Seventh Circuit affirmed.
Held:
1. The District Court had jurisdiction over petitioner’s suit. Peti-
tioner was undisputedly injured in fact by Illinois’ agency-fee scheme
and his injuries can be redressed by a favorable court decision. For
jurisdictional purposes, the court permissibly treated his amended
complaint in intervention as the operative complaint in a new law-
suit. United States ex rel. Texas Portland Cement Co. v. McCord, 233
U.S. 157, distinguished. Pp. 6–7.
2. The State’s extraction of agency fees from nonconsenting public-
sector employees violates the First Amendment. Abood erred in con-
cluding otherwise, and stare decisis cannot support it. Abood is
therefore overruled. Pp. 7–47.
(a) Abood’s holding is inconsistent with standard First
Amendment principles. Pp. 7–18.
(1) Forcing free and independent individuals to endorse ideas they
find objectionable raises serious First Amendment concerns. E.g.,
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 633. That in-
cludes compelling a person to subsidize the speech of other private
speakers. E.g., Knox v. Service Employees, 567 U.S. 298, 309. In
Knox and Harris v. Quinn, 573 U. S. ___, the Court applied an “exact-
ing” scrutiny standard in judging the constitutionality of agency fees
rather than the more traditional strict scrutiny. Even under the
more permissive standard, Illinois’ scheme cannot survive. Pp. 7–11.
(2) Neither of Abood’s two justifications for agency fees passes mus-
ter under this standard. First, agency fees cannot be upheld on the
ground that they promote an interest in “labor peace.” The Abood
Court’s fears of conflict and disruption if employees were represented
by more than one union have proved to be unfounded: Exclusive rep-
resentation of all the employees in a unit and the exaction of agency
fees are not inextricably linked. To the contrary, in the Federal Gov-
ernment and the 28 States with laws prohibiting agency fees, mil-
lions of public employees are represented by unions that effectively
serve as the exclusive representatives of all the employees. Whatever
may have been the case 41 years ago when Abood was decided, it is
thus now undeniable that “labor peace” can readily be achieved
through less restrictive means than the assessment of agency fees.
Second, avoiding “the risk of ‘free riders,’ ” Abood, supra, at 224, is
not a compelling state interest. Free-rider “arguments . . . are gener-
ally insufficient to overcome First Amendment objections,” Knox, su-
pra, at 311, and the statutory requirement that unions represent
members and nonmembers alike does not justify different treatment.
As is evident in non-agency-fee jurisdictions, unions are quite willing
Cite as: 585 U. S. ____ (2018) 3
Syllabus
to represent nonmembers in the absence of agency fees. And their
duty of fair representation is a necessary concomitant of the authori-
ty that a union seeks when it chooses to be the exclusive representa-
tive. In any event, States can avoid free riders through less restric-
tive means than the imposition of agency fees. Pp. 11–18.
(b) Respondents’ alternative justifications for Abood are similarly
unavailing. Pp. 18–26.
(1) The Union claims that Abood is supported by the First Amend-
ment’s original meaning. But neither founding-era evidence nor dic-
tum in Connick v. Myers, 461 U.S. 138, 143, supports the view that
the First Amendment was originally understood to allow States to
force public employees to subsidize a private third party. If anything,
the opposite is true. Pp. 18–22.
(2) Nor does Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U.S. 563, provide a basis for Abood. Abood
was not based on Pickering, and for good reasons. First, Pickering’s
framework was developed for use in cases involving “one employee’s
speech and its impact on that employee’s public responsibilities,”
United States v. Treasury Employees, 513 U.S. 454, 467, while Abood
and other agency-fee cases involve a blanket requirement that all
employees subsidize private speech with which they may not agree.
Second, Pickering’s framework was designed to determine whether a
public employee’s speech interferes with the effective operation of a
government office, not what happens when the government compels
speech or speech subsidies in support of third parties. Third, the cat-
egorization schemes of Pickering and Abood do not line up. For ex-
ample, under Abood, nonmembers cannot be charged for speech that
concerns political or ideological issues; but under Pickering, an em-
ployee’s free speech interests on such issues could be overcome if
outweighed by the employer’s interests. Pp. 22–26.
(c) Even under some form of Pickering, Illinois’ agency-fee ar-
rangement would not survive. Pp. 26–33.
(1) Respondents compare union speech in collective bargaining and
grievance proceedings to speech “pursuant to [an employee’s] official
duties,” Garcetti v. Ceballos, 547 U.S. 410, 421, which the State may
require of its employees. But in those situations, the employee’s
words are really the words of the employer, whereas here the union is
speaking on behalf of the employees. Garcetti therefore does not ap-
ply. Pp. 26–27.
(2) Nor does the union speech at issue cover only matters of private
concern, which the State may also generally regulate under Picker-
ing. 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
4 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Syllabus
minority rights. Pp. 27–31.
(3) The government’s proffered interests must therefore justify the
heavy burden of agency fees on nonmembers’ First Amendment in-
terests. They do not. The state interests asserted in Abood—
promoting “labor peace” and avoiding free riders—clearly do not, as
explained earlier. And the new interests asserted in Harris and
here—bargaining with an adequately funded agent and improving
the efficiency of the work force—do not suffice either. Experience
shows that unions can be effective even without agency fees. Pp. 31–
33.
(d) Stare decisis does not require retention of Abood. An analy-
sis of several important factors that should be taken into account in
deciding whether to overrule a past decision supports this conclusion.
Pp. 33–47.
(1) Abood was poorly reasoned, and those arguing for retaining it
have recast its reasoning, which further undermines its stare decisis
effect, e.g., Citizens United v. Federal Election Comm’n, 558 U.S.
310, 363. Abood relied on Railway Employes v. Hanson, 351 U.S.
225, and Machinists v. Street, 367 U.S. 740, both of which involved
private-sector collective-bargaining agreements where the govern-
ment merely authorized agency fees. Abood did not appreciate the
very different First Amendment question that arises when a State
requires its employees to pay agency fees. Abood also judged the con-
stitutionality of public-sector agency fees using Hanson’s deferential
standard, which is inappropriate in deciding free speech issues. Nor
did Abood take into account the difference between the effects of
agency fees in public- and private-sector collective bargaining, antici-
pate administrative problems with classifying union expenses as
chargeable or nonchargeable, foresee practical problems faced by
nonmembers wishing to challenge those decisions, or understand the
inherently political nature of public-sector bargaining. Pp. 35–38.
(2) Abood’s lack of workability also weighs against it. Its line be-
tween chargeable and nonchargeable expenditures has proved to be
impossible to draw with precision, as even respondents recognize.
See, e.g., Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519. What is
more, a nonmember objecting to union chargeability determinations
will have much trouble determining the accuracy of the union’s re-
ported expenditures, which are often expressed in extremely broad
and vague terms. Pp. 38–41.
(3) Developments since Abood, both factual and legal, have “erod-
ed” the decision’s “underpinnings” and left it an outlier among the
Court’s First Amendment cases. United States v. Gaudin, 515 U.S.
506, 521. Abood relied on an assumption that “the principle of exclu-
sive representation in the public sector is dependent on a union or
Cite as: 585 U. S. ____ (2018) 5
Syllabus
agency shop,” Harris, 573 U. S., at ___–___, but experience has shown
otherwise. It was also decided when public-sector unionism was a
relatively new phenomenon. Today, however, public-sector union
membership has surpassed that in the private sector, and that as-
cendency corresponds with a parallel increase in public spending.
Abood is also an anomaly in the Court’s First Amendment jurispru-
dence, where exacting scrutiny, if not a more demanding standard,
generally applies. Overruling Abood will also end the oddity of allow-
ing public employers to compel union support (which is not supported
by any tradition) but not to compel party support (which is supported
by tradition), see, e.g., Elrod v. Burns, 427 U.S. 347. Pp. 42–44.
(4) Reliance on Abood does not carry decisive weight. The uncer-
tain status of Abood, known to unions for years; the lack of clarity it
provides; the short-term nature of collective-bargaining agreements;
and the ability of unions to protect themselves if an agency-fee provi-
sion was crucial to its bargain undermine the force of reliance.
Pp. 44–47.
3. For these reasons, States and public-sector unions may no longer
extract agency fees from nonconsenting employees. The First
Amendment is violated when money is taken from nonconsenting
employees for a public-sector union; employees must choose to sup-
port the union before anything is taken from them. Accordingly, nei-
ther an agency fee nor any other form of payment to a public-sector
union may be deducted from an employee, nor may any other attempt
be made to collect such a payment, unless the employee affirmatively
consents to pay. Pp. 48–49.
851 F.3d 746, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, THOMAS, and, GORSUCH, JJ., joined. SOTOMAYOR, J., filed
a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which
GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1466
_________________
MARK JANUS, PETITIONER v. AMERICAN FEDER­
ATION OF STATE, COUNTY, AND MUNICIPAL
EMPLOYEES, COUNCIL 31, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 27, 2018]
JUSTICE ALITO delivered the opinion of the Court.
Under Illinois law, public employees are forced to subsi­
dize a union, even if they choose not to join and strongly
object to the positions the union takes in collective bar­
gaining and related activities. We conclude that this
arrangement violates the free speech rights of nonmem­
bers by compelling them to subsidize private speech on
matters of substantial public concern.
We upheld a similar law in Abood v. Detroit Bd. of Ed.,
431 U.S. 209 (1977), and we recognize the importance of
following precedent unless there are strong reasons for not
doing so. But there are very strong reasons in this case.
Fundamental free speech rights are at stake. Abood was
poorly reasoned. It has led to practical problems and
abuse. It is inconsistent with other First Amendment
cases and has been undermined by more recent decisions.
Developments since Abood was handed down have shed
new light on the issue of agency fees, and no reliance
interests on the part of public-sector unions are sufficient
to justify the perpetuation of the free speech violations
2 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
that Abood has countenanced for the past 41 years. Abood
is therefore overruled.
I
A
Under the Illinois Public Labor Relations Act (IPLRA),
employees of the State and its political subdivisions are
permitted to unionize. See Ill. Comp. Stat., ch. 5,
§315/6(a) (West 2016). If a majority of the employees in a
bargaining unit vote to be represented by a union, that
union is designated as the exclusive representative of all
the employees. §§315/3(s)(1), 315/6(c), 315/9. Employees
in the unit are not obligated to join the union selected by
their co-workers, but whether they join or not, that union
is deemed to be their sole permitted representative. See
§§315/6(a), (c).
Once a union is so designated, it is vested with broad
authority. Only the union may negotiate with the employer
on matters relating to “pay, wages, hours[,] and other
conditions of employment.” §315/6(c). And this authority
extends to the negotiation of what the IPLRA calls “policy
matters,” such as merit pay, the size of the work force,
layoffs, privatization, promotion methods, and non­
discrimination policies. §315/4; see §315/6(c); see gener-
ally, e.g., Illinois Dept. of Central Management Servs. v.
AFSCME, Council 31, No. S–CB–16–17 etc., 33 PERI ¶67
(ILRB Dec. 13, 2016) (Board Decision).
Designating a union as the employees’ exclusive repre­
sentative substantially restricts the rights of individual
employees. Among other things, this designation means
that individual employees may not be represented by any
agent other than the designated union; nor may individual
employees negotiate directly with their employer.
§§315/6(c)–(d), 315/10(a)(4); see Matthews v. Chicago
Transit Authority, 2016 IL 117638, 51 N.E.3d 753, 782;
accord, Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
683–684 (1944). Protection of the employees’ interests is
placed in the hands of the union, and therefore the union
is required by law to provide fair representation for all
employees in the unit, members and nonmembers alike.
§315/6(d).
Employees who decline to join the union are not as­
sessed full union dues but must instead pay what is gen­
erally called an “agency fee,” which amounts to a percent­
age of the union dues. Under Abood, nonmembers may be
charged for the portion of union dues attributable to activ­
ities that are “germane to [the union’s] duties as collective-
bargaining representative,” but nonmembers may not be
required to fund the union’s political and ideological pro­
jects. 431 U.S., at 235; see id., at 235–236. In labor-law
parlance, the outlays in the first category are known as
“chargeable” expenditures, while those in the latter are
labeled “nonchargeable.”
Illinois law does not specify in detail which expenditures
are chargeable and which are not. The IPLRA provides
that an agency fee may compensate a union for the costs
incurred in “the collective bargaining process, contract
administration[,] and pursuing matters affecting wages,
hours[,] and conditions of employment.” §315/6(e); see also
§315/3(g). Excluded from the agency-fee calculation are
union expenditures “related to the election or support of
any candidate for political office.” §315/3(g); see §315/6(e).
Applying this standard, a union categorizes its expendi­
tures as chargeable or nonchargeable and thus determines
a nonmember’s “proportionate share,” §315/6(e); this
determination is then audited; the amount of the “propor­
tionate share” is certified to the employer; and the em­
ployer automatically deducts that amount from the non­
members’ wages. See ibid.; App. to Pet. for Cert. 37a; see
also Harris v. Quinn, 573 U. S. ___, ___–___ (2014) (slip
op., at 19–20) (describing this process). Nonmembers need
not be asked, and they are not required to consent before
4 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
the fees are deducted.
After the amount of the agency fee is fixed each year,
the union must send nonmembers what is known as a
Hudson notice. See Teachers v. Hudson, 475 U.S. 292
(1986). This notice is supposed to provide nonmembers
with “an adequate explanation of the basis for the [agency]
fee.” Id., at 310. If nonmembers “suspect that a union has
improperly put certain expenses in the [chargeable] cate­
gory,” they may challenge that determination. Harris,
supra, at ___ (slip op., at 19).
As illustrated by the record in this case, unions charge
nonmembers, not just for the cost of collective bargaining
per se, but also for many other supposedly connected
activities. See App. to Pet. for Cert. 28a–39a. Here, the
nonmembers were told that they had to pay for
“[l]obbying,” “[s]ocial and recreational activities,” “adver­
tising,” “[m]embership meetings and conventions,” and
“litigation,” as well as other unspecified “[s]ervices” that
“may ultimately inure to the benefit of the members of the
local bargaining unit.” Id., at 28a–32a. The total charge­
able amount for nonmembers was 78.06% of full union
dues. Id., at 34a.
B
Petitioner Mark Janus is employed by the Illinois De­
partment of Healthcare and Family Services as a child
support specialist. Id., at 10a. The employees in his unit
are among the 35,000 public employees in Illinois who are
represented by respondent American Federation of State,
County, and Municipal Employees, Council 31 (Union).
Ibid. Janus refused to join the Union because he opposes
“many of the public policy positions that [it] advocates,”
including the positions it takes in collective bargaining.
Id., at 10a, 18a. Janus believes that the Union’s “behavior
in bargaining does not appreciate the current fiscal crises
in Illinois and does not reflect his best interests or the
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
interests of Illinois citizens.” Id., at 18a. Therefore, if he
had the choice, he “would not pay any fees or otherwise
subsidize [the Union].” Ibid. Under his unit’s collective-
bargaining agreement, however, he was required to pay an
agency fee of $44.58 per month, id., at 14a—which would
amount to about $535 per year.
Janus’s concern about Illinois’ current financial situa­
tion is shared by the Governor of the State, and it was the
Governor who initially challenged the statute authorizing
the imposition of agency fees. The Governor commenced
an action in federal court, asking that the law be declared
unconstitutional, and the Illinois attorney general (a
respondent here) intervened to defend the law. App. 41.
Janus and two other state employees also moved to inter­
vene—but on the Governor’s side. Id., at 60.
Respondents moved to dismiss the Governor’s challenge
for lack of standing, contending that the agency fees did
not cause him any personal injury. E.g., id., at 48–49.
The District Court agreed that the Governor could not
maintain the lawsuit, but it held that petitioner and the
other individuals who had moved to intervene had stand­
ing because the agency fees unquestionably injured them.
Accordingly, “in the interest of judicial economy,” the court
dismissed the Governor as a plaintiff, while simultane-
ously allowing petitioner and the other employees to file their
own complaint. Id., at 112. They did so, and the case
proceeded on the basis of this new complaint.
The amended complaint claims that all “nonmember fee
deductions are coerced political speech” and that “the First
Amendment forbids coercing any money from the non­
members.” App. to Pet. for Cert. 23a. Respondents moved
to dismiss the amended complaint, correctly recognizing
that the claim it asserted was foreclosed by Abood. The
District Court granted the motion, id., at 7a, and the
Court of Appeals for the Seventh Circuit affirmed, 851
F.3d 746 (2017).
6 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
Janus then sought review in this Court, asking us to
overrule Abood and hold that public-sector agency-fee
arrangements are unconstitutional. We granted certiorari
to consider this important question. 582 U. S. ___ (2017).
II
Before reaching this question, however, we must con-
sider a threshold issue. Respondents contend that the Dis-
trict Court lacked jurisdiction under Article III of the
Constitution because petitioner “moved to intervene in
[the Governor’s] jurisdictionally defective lawsuit.” Union
Brief in Opposition 11; see also id., at 13–17; State Brief in
Opposition 6; Brief for Union Respondent i, 16–17; Brief
for State Respondents 14, n. 1. This argument is clearly
wrong.
It rests on the faulty premise that petitioner intervened
in the action brought by the Governor, but that is not
what happened. The District Court did not grant petition­
er’s motion to intervene in that lawsuit. Instead, the court
essentially treated petitioner’s amended complaint as the
operative complaint in a new lawsuit. App. 110–112. And
when the case is viewed in that way, any Article III issue
vanishes. As the District Court recognized—and as re­
spondents concede—petitioner was injured in fact by
Illinois’ agency-fee scheme, and his injuries can be re­
dressed by a favorable court decision. Ibid.; see Record
2312–2313, 2322–2323. Therefore, he clearly has Article
III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–561 (1992). It is true that the District Court docketed
petitioner’s complaint under the number originally as­
signed to the Governor’s complaint, instead of giving it a
new number of its own. But Article III jurisdiction does
not turn on such trivialities.
The sole decision on which respondents rely, United
States ex rel. Texas Portland Cement Co. v. McCord, 233
U.S. 157 (1914), actually works against them. That case
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
concerned a statute permitting creditors of a government
contractor to bring suit on a bond between 6 and 12
months after the completion of the work. Id., at 162. One
creditor filed suit before the 6-month starting date, but
another intervened within the 6-to-12-month window. The
Court held that the “[t]he intervention [did] not cure th[e]
vice in the original [prematurely filed] suit,” but the Court
also contemplated treating “intervention . . . as an original
suit” in a case in which the intervenor met the require­
ments that a plaintiff must satisfy—e.g., filing a separate
complaint and properly serving the defendants. Id., at
163–164. Because that is what petitioner did here, we
may reach the merits of the question presented.
III
In Abood, the Court upheld the constitutionality of an
agency-shop arrangement like the one now before us, 431
U.S., at 232, but in more recent cases we have recognized
that this holding is “something of an anomaly,” Knox v.
Service Employees, 567 U.S. 298, 311 (2012), and that
Abood’s “analysis is questionable on several grounds,”
Harris, 573 U. S., at ___ (slip op., at 17); see id., at ___–___
(slip op., at 17–20) (discussing flaws in Abood’s reasoning).
We have therefore refused to extend Abood to situations
where it does not squarely control, see Harris, supra, at
___–___ (slip op., at 27–29), while leaving for another day
the question whether Abood should be overruled, Harris,
supra, at ___, n. 19 (slip op., at 27, n. 19); see Knox, supra,
at 310–311.
We now address that question. We first consider
whether Abood’s holding is consistent with standard First
Amendment principles.
A
The First Amendment, made applicable to the States by
the Fourteenth Amendment, forbids abridgment of the
8 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
freedom of speech. We have held time and again that
freedom of speech “includes both the right to speak freely
and the right to refrain from speaking at all.” Wooley v.
Maynard, 430 U.S. 705, 714 (1977); see Riley v. National
Federation of Blind of N. C., Inc., 487 U.S. 781, 796–797
(1988); Harper & Row, Publishers, Inc. v. Nation Enter-
prises, 471 U.S. 539, 559 (1985); Miami Herald Publish-
ing Co. v. Tornillo, 418 U.S. 241, 256–257 (1974); accord,
Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475
U.S. 1, 9 (1986) (plurality opinion). The right to eschew
association for expressive purposes is likewise protected.
Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)
(“Freedom of association . . . plainly presupposes a free­
dom not to associate”); see Pacific Gas & Elec., supra, at
12 (“[F]orced associations that burden protected speech
are impermissible”). As Justice Jackson memorably put it:
“If there is any fixed star in our constitutional constella­
tion, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or
act their faith therein.” West Virginia Bd. of Ed. v. Bar-
nette, 319 U.S. 624, 642 (1943) (emphasis added).
Compelling individuals to mouth support for views they
find objectionable violates that cardinal constitutional
command, and in most contexts, any such effort would be
universally condemned. Suppose, for example, that the
State of Illinois required all residents to sign a document
expressing support for a particular set of positions on
controversial public issues—say, the platform of one of the
major political parties. No one, we trust, would seriously
argue that the First Amendment permits this.
Perhaps because such compulsion so plainly violates the
Constitution, most of our free speech cases have involved
restrictions on what can be said, rather than laws compel­
ling speech. But measures compelling speech are at least
as threatening.
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
Free speech serves many ends. It is essential to our
democratic form of government, see, e.g., Garrison v.
Louisiana, 379 U.S. 64, 74–75 (1964), and it furthers the
search for truth, see, e.g., Thornhill v. Alabama, 310 U.S.
88, 95 (1940). Whenever the Federal Government or a
State prevents individuals from saying what they think on
important matters or compels them to voice ideas with
which they disagree, it undermines these ends.
When speech is compelled, however, additional damage
is done. In that situation, individuals are coerced into
betraying their convictions. Forcing free and independent
individuals to endorse ideas they find objectionable is
always demeaning, and for this reason, one of our land­
mark free speech cases said that a law commanding “in­
voluntary affirmation” of objected-to beliefs would require
“even more immediate and urgent grounds” than a law
demanding silence. Barnette, supra, at 633; see also Riley,
supra, at 796–797 (rejecting “deferential test” for com­
pelled speech claims).
Compelling a person to subsidize the speech of other
private speakers raises similar First Amendment con­
cerns. Knox, supra, at 309; United States v. United Foods,
Inc., 533 U.S. 405, 410 (2001); Abood, supra, at 222, 234–
235. As Jefferson famously put it, “to compel a man to
furnish contributions of money for the propagation of
opinions which he disbelieves and abhor[s] is sinful and
tyrannical.” A Bill for Establishing Religious Freedom, in
2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (em­
phasis deleted and footnote omitted); see also Hudson, 475
U.S., at 305, n. 15. We have therefore recognized that a
“ ‘significant impingement on First Amendment rights’ ”
occurs when public employees are required to provide
financial support for a union that “takes many positions
during collective bargaining that have powerful political
and civic consequences.” Knox, supra, at 310–311 (quoting
Ellis v. Railway Clerks, 466 U.S. 435, 455 (1984)).
10 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
Because the compelled subsidization of private speech
seriously impinges on First Amendment rights, it cannot
be casually allowed. Our free speech cases have identified
“levels of scrutiny” to be applied in different contexts, and
in three recent cases, we have considered the standard
that should be used in judging the constitutionality of
agency fees. See Knox, supra; Harris, supra; Friedrichs v.
California Teachers Assn., 578 U. S. ___ (2016) (per cu-
riam) (affirming decision below by equally divided Court).
In Knox, the first of these cases, we found it sufficient to
hold that the conduct in question was unconstitutional
under even the test used for the compulsory subsidization
of commercial speech. 567 U.S., at 309–310, 321–322.
Even though commercial speech has been thought to enjoy
a lesser degree of protection, see, e.g., Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S.
557, 562–563 (1980), prior precedent in that area, specifi­
cally United Foods, supra, had applied what we character­
ized as “exacting” scrutiny, Knox, 567 U.S., at 310, a less
demanding test than the “strict” scrutiny that might be
thought to apply outside the commercial sphere. Under
“exacting” scrutiny, we noted, a compelled subsidy must
“serve a compelling state interest that cannot be achieved
through means significantly less restrictive of associa-
tional freedoms.” Ibid. (internal quotation marks and altera-
tions omitted).
In Harris, the second of these cases, we again found that
an agency-fee requirement failed “exacting scrutiny.” 573
U. S., at ___ (slip op., at 33). But we questioned whether
that test provides sufficient protection for free speech
rights, since “it is apparent that the speech compelled” in
agency-fee cases “is not commercial speech.” Id., at ___
(slip op., at 30).
Picking up that cue, petitioner in the present case con­
tends that the Illinois law at issue should be subjected to
“strict scrutiny.” Brief for Petitioner 36. The dissent, on
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
the other hand, proposes that we apply what amounts to
rational-basis review, that is, that we ask only whether a
government employer could reasonably believe that the
exaction of agency fees serves its interests. See post, at 4
(KAGAN, J., dissenting) (“A government entity could rea­
sonably conclude that such a clause was needed”). This
form of minimal scrutiny is foreign to our free-speech
jurisprudence, and we reject it here. At the same time, we
again find it unnecessary to decide the issue of strict
scrutiny because the Illinois scheme cannot survive under
even the more permissive standard applied in Knox and
Harris.
In the remainder of this part of our opinion (Parts III–B
and III–C), we will apply this standard to the justifica­
tions for agency fees adopted by the Court in Abood.
Then, in Parts IV and V, we will turn to alternative ra­
tionales proffered by respondents and their amici.
B
In Abood, the main defense of the agency-fee arrange­
ment was that it served the State’s interest in “labor
peace,” 431 U.S., at 224. By “labor peace,” the Abood
Court meant avoidance of the conflict and disruption that
it envisioned would occur if the employees in a unit were
represented by more than one union. In such a situation,
the Court predicted, “inter-union rivalries” would foster
“dissension within the work force,” and the employer could
face “conflicting demands from different unions.” Id., at
220–221. Confusion would ensue if the employer entered
into and attempted to “enforce two or more agreements
specifying different terms and conditions of employment.”
Id., at 220. And a settlement with one union would be
“subject to attack from [a] rival labor organizatio[n].” Id.,
at 221.
We assume that “labor peace,” in this sense of the term,
is a compelling state interest, but Abood cited no evidence
12 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
that the pandemonium it imagined would result if agency
fees were not allowed, and it is now clear that Abood’s
fears were unfounded. The Abood Court assumed that
designation of a union as the exclusive representative of
all the employees in a unit and the exaction of agency fees
are inextricably linked, but that is simply not true. Har-
ris, supra, at ___ (slip op., at 31).
The federal employment experience is illustrative.
Under federal law, a union chosen by majority vote is
designated as the exclusive representative of all the em­
ployees, but federal law does not permit agency fees. See
5 U.S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a
million federal employees—about 27% of the federal work
force—are union members.1 The situation in the Postal
Service is similar. Although permitted to choose an exclu­
sive representative, Postal Service employees are not
required to pay an agency fee, 39 U.S. C. §§1203(a),
1209(c), and about 400,000 are union members.2 Like­
wise, millions of public employees in the 28 States that
have laws generally prohibiting agency fees are represented
by unions that serve as the exclusive representatives of
all the employees.3 Whatever may have been the case 41
years ago when Abood was handed down, it is now unde­
niable that “labor peace” can readily be achieved “through
means significantly less restrictive of associational free­
doms” than the assessment of agency fees. Harris, supra,
at ___ (slip op., at 30) (internal quotation marks omitted).
——————
1 See Bureau of Labor Statistics (BLS), Labor Force Statistics From
the Current Population Survey (Table 42) (2017), https://www
.bls.gov/cps/tables.htm (all Internet materials as visited June 26, 2018).
2 See Union Membership and Coverage Database From the Current
Population Survey (Jan. 21, 2018), unionstats.com.
3 See National Conference of State Legislatures, Right-to-Work States
(2018), http://www.ncsl.org/research/labor-and-employment/right-to­
work-laws-and-bills.aspx#chart; see also, e.g., Brief for Mackinac
Center for Public Policy as Amicus Curiae 27–28, 34–36.
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
C
In addition to the promotion of “labor peace,” Abood
cited “the risk of ‘free riders’ ” as justification for agency
fees, 431 U.S., at 224. Respondents and some of their
amici endorse this reasoning, contending that agency fees
are needed to prevent nonmembers from enjoying the
benefits of union representation without shouldering the
costs. Brief for Union Respondent 34–36; Brief for State
Respondents 41–45; see, e.g., Brief for International
Brotherhood of Teamsters as Amicus Curiae 3–5.
Petitioner strenuously objects to this free-rider label.
He argues that 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.
Whichever description fits the majority of public em­
ployees who would not subsidize a union if given the op­
tion, avoiding free riders is not a compelling interest. As
we have noted, “free-rider arguments . . . are generally
insufficient to overcome First Amendment objections.”
Knox, 567 U.S., at 311. To hold otherwise across the
board would have startling consequences. Many private
groups speak out with the objective of obtaining govern­
ment action that will have the effect of benefiting non­
members. May all those who are thought to benefit from
such efforts be compelled to subsidize this speech?
Suppose that a particular group lobbies or speaks out on
behalf of what it thinks are the needs of senior citizens or
veterans or physicians, to take just a few examples. Could
the government require that all seniors, veterans, or
doctors pay for that service even if they object? It has
never been thought that this is permissible. “[P]rivate
speech often furthers the interests of nonspeakers,” but
“that does not alone empower the state to compel the
speech to be paid for.” Lehnert v. Ferris Faculty Assn., 500
U.S. 507, 556 (1991) (Scalia, J., concurring in judgment in
part and dissenting in part). In simple terms, the First
14 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
Amendment does not permit the government to compel a
person to pay for another party’s speech just because the
government thinks that the speech furthers the interests
of the person who does not want to pay.4
Those supporting agency fees contend that the situation
here is different because unions are statutorily required to
“represen[t] the interests of all public employees in the
unit,” whether or not they are union members. §315/6(d);
see, e.g., Brief for State Respondents 40–41, 45; post, at 7
(KAGAN, J., dissenting). Why might this matter?
We can think of two possible arguments. It might be
argued that a State has a compelling interest in requiring
the payment of agency fees because (1) unions would
otherwise be unwilling to represent nonmembers or (2) it
would be fundamentally unfair to require unions to pro­
vide fair representation for nonmembers if nonmembers
were not required to pay. Neither of these arguments is
sound.
First, it is simply not true that unions will refuse to
serve as the exclusive representative of all employees in
the unit if they are not given agency fees. As noted, un­
ions represent millions of public employees in jurisdictions
that do not permit agency fees. No union is ever com­
pelled to seek that designation. On the contrary, designa­
tion as exclusive representative is avidly sought.5 Why is
——————
4 The collective-action problem cited by the dissent, post, at 6, is not
specific to the agency-fee context. And contrary to the dissent’s sugges­
tion, it is often not practical for an entity that lobbies or advocates on
behalf of the members of a group to tailor its message so that only its
members benefit from its efforts. Consider how effective it would be for
a group that advocates on behalf of, say, seniors, to argue that a new
measure should apply only to its dues-paying members.
5 In order to obtain that status, a union must petition to be recognized
and campaign to win majority approval. Ill. Comp. Stat., ch. 5,
§315/9(a) (2016); see, e.g., County of Du Page v. Illinois Labor Relations
Bd., 231 Ill. 2d 593, 597–600, 900 N.E.2d 1095, 1098–1099 (2008).
And unions eagerly seek this support. See, e.g., Brief for Employees of
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
this so?
Even without agency fees, designation as the exclusive
representative confers many benefits. As noted, that
status gives the union a privileged place in negotiations
over wages, benefits, and working conditions. See
§315/6(c). Not only is the union given the exclusive right
to speak for all the employees in collective bargaining, but
the employer is required by state law to listen to and to
bargain in good faith with only that union. §315/7. Des­
ignation as exclusive representative thus “results in a
tremendous increase in the power” of the union. American
Communications Assn. v. Douds, 339 U.S. 382, 401
(1950).
In addition, a union designated as exclusive representa­
tive is often granted special privileges, such as obtaining
information about employees, see §315/6(c), and having
dues and fees deducted directly from employee wages,
§§315/6(e)–(f ). The collective-bargaining agreement in
this case guarantees a long list of additional privileges.
See App. 138–143.
These benefits greatly outweigh any extra burden im­
posed by the duty of providing fair representation for
nonmembers. What this duty entails, in simple terms, is
an obligation not to “act solely in the interests of [the
union’s] own members.” Brief for State Respondents 41;
see Cintron v. AFSCME, Council 31, No. S–CB–16–032,
p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not
intentionally direct “animosity” toward nonmembers based
on their “dissident union practices”); accord, 14 Penn
Plaza LLC v. Pyett, 556 U.S. 247, 271 (2009); Vaca v.
Sipes, 386 U.S. 171, 177 (1967).
What does this mean when it comes to the negotiation of
a contract? The union may not negotiate a collective-
bargaining agreement that discriminates against non­
——————
the State of Minnesota Court System as Amici Curiae 9–17.
16 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
members, see Steele v. Louisville & Nashville R. Co., 323
U.S. 192, 202–203 (1944), but the union’s bargaining
latitude would be little different if state law simply prohib­
ited public employers from entering into agreements that
discriminate in that way. And for that matter, it is ques­
tionable whether the Constitution would permit a public-
sector employer to adopt a collective-bargaining agree­
ment that discriminates against nonmembers. See id., at
198–199, 202 (analogizing a private-sector union’s fair-
representation duty to the duty “the Constitution imposes
upon a legislature to give equal protection to the interests
of those for whom it legislates”); cf. Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47, 69
(2006) (recognizing that government may not “impose
penalties or withhold benefits based on membership in a
disfavored group” where doing so “ma[kes] group member­
ship less attractive”). To the extent that an employer
would be barred from acceding to a discriminatory agree­
ment anyway, the union’s duty not to ask for one is super­
fluous. It is noteworthy that neither respondents nor any
of the 39 amicus briefs supporting them—nor the dis­
sent—has explained why the duty of fair representation
causes public-sector unions to incur significantly greater
expenses than they would otherwise bear in negotiating
collective-bargaining agreements.
What about the representation of nonmembers in griev­
ance proceedings? Unions do not undertake this activity
solely for the benefit of nonmembers—which is why Illi­
nois law gives a public-sector union the right to send a
representative to such proceedings even if the employee
declines union representation. §315/6(b). Representation
of nonmembers furthers the union’s interest in keeping
control of the administration of the collective-bargaining
agreement, since the resolution of one employee’s griev­
ance can affect others. And when a union controls the
grievance process, it may, as a practical matter, effectively
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
subordinate “the interests of [an] individual em-
ployee . . . to the collective interests of all employees in the
bargaining unit.” Alexander v. Gardner-Denver Co., 415
U.S. 36, 58, n. 19 (1974); see Stahulak v. Chicago, 184
Ill. 2d 176, 180–181, 703 N.E.2d 44, 46–47 (1998); Ma-
honey v. Chicago, 293 Ill. App. 3d 69, 73–74, 687 N.E.2d
132, 135–137 (1997) (union has “ ‘discretion to refuse to
process’ ” a grievance, provided it does not act “arbi­
trar[ily]” or “in bad faith” (emphasis deleted)).
In any event, whatever unwanted burden is imposed by
the representation of nonmembers in disciplinary matters
can be eliminated “through means significantly less re­
strictive of associational freedoms” than the imposition of
agency fees. Harris, 573 U. S., at ___ (slip op., at 30)
(internal quotation marks omitted). Individual nonmem­
bers could be required to pay for that service or could be
denied union representation altogether.6 Thus, agency
fees cannot be sustained on the ground that unions would
otherwise be unwilling to represent nonmembers.
Nor can such fees be justified on the ground that it
would otherwise be unfair to require a union to bear the
duty of fair representation. That duty is a necessary
concomitant of the authority that a union seeks when it
chooses to serve as the exclusive representative of all the
employees in a unit. As explained, designating a union as
the exclusive representative of nonmembers substantially
restricts the nonmembers’ rights. Supra, at 2–3. Protec­
——————
6 There is precedent for such arrangements. Some States have laws
providing that, if an employee with a religious objection to paying an
agency fee “requests the [union] to use the grievance procedure or
arbitration procedure on the employee’s behalf, the [union] is author­
ized to charge the employee for the reasonable cost of using such
procedure.” E.g., Cal. Govt. Code Ann. §3546.3 (West 2010); cf. Ill.
Comp. Stat., ch. 5, §315/6(g) (2016). This more tailored alternative, if
applied to other objectors, would prevent free ridership while imposing
a lesser burden on First Amendment rights.
18 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
tion of their interests is placed in the hands of the union,
and if the union were free to disregard or even work
against those interests, these employees would be wholly
unprotected. That is why we said many years ago that
serious “constitutional questions [would] arise” if the
union were not subject to the duty to represent all employ­
ees fairly. Steele, supra, at 198.
In sum, we do not see any reason to treat the free-rider
interest any differently in the agency-fee context than in
any other First Amendment context. See Knox, 567 U.S.,
at 311, 321. We therefore hold that agency fees cannot be
upheld on free-rider grounds.
IV
Implicitly acknowledging the weakness of Abood’s own
reasoning, proponents of agency fees have come forward
with alternative justifications for the decision, and we now
address these arguments.
A
The most surprising of these new arguments is the
Union respondent’s originalist defense of Abood. Accord­
ing to this argument, Abood was correctly decided because
the First Amendment was not originally understood to
provide any protection for the free speech rights of public
employees. Brief for Union Respondent 2–3, 17–20.
As an initial matter, we doubt that the Union—or its
members—actually want us to hold that public employees
have “no [free speech] rights.” Id., at 1. Cf., e.g., Brief for
National Treasury Employees Union as Amicus Curiae in
Garcetti v. Ceballos, O. T. 2005, No. 04–473, p. 7 (arguing
for “broa[d]” public-employee First Amendment rights);
Brief for AFL–CIO as Amicus Curiae in No. 04–473
(similar).
It is particularly discordant to find this argument in a
brief that trumpets the importance of stare decisis. See
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
Brief for Union Respondent 47–57. Taking away free
speech protection for public employees would mean
overturning decades of landmark precedent. Under the
Union’s theory, Pickering v. Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U.S. 563 (1968), and
its progeny would fall. Yet Pickering, as we will discuss, is
now the foundation for respondents’ chief defense of
Abood. And indeed, Abood itself would have to go if public
employees have no free speech rights, since Abood holds
that the First Amendment prohibits the exaction of agency
fees for political or ideological purposes. 431 U.S., at 234–
235 (finding it “clear” that “a government may not require
an individual to relinquish rights guaranteed him by the
First Amendment as a condition of public employment”).
Our political patronage cases would be doomed. See, e.g.,
Rutan v. Republican Party of Ill., 497 U.S. 62 (1990);
Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427
U.S. 347 (1976). Also imperiled would be older precedents
like Wieman v. Updegraff, 344 U.S. 183 (1952) (loyalty
oaths), Shelton v. Tucker, 364 U.S. 479 (1960) (disclosure
of memberships and contributions), and Keyishian v.
Board of Regents of Univ. of State of N. Y., 385 U.S. 589
(1967) (subversive speech). Respondents presumably want
none of this, desiring instead that we apply the
Constitution’s supposed original meaning only when it
suits them—to retain the part of Abood that they like. See
Tr. of Oral Arg. 56–57. We will not engage in this halfway
originalism.
Nor, in any event, does the First Amendment’s original
meaning support the Union’s claim. The Union offers no
persuasive founding-era evidence that public employees
were understood to lack free speech protections. While it
observes that restrictions on federal employees’ activities
have existed since the First Congress, most of its historical
examples involved limitations on public officials’ outside
business dealings, not on their speech. See Ex parte
20 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
Curtis, 106 U.S. 371, 372–373 (1882). The only early
speech restrictions the Union identifies are an 1806
statute prohibiting military personnel from using
“ ‘contemptuous or disrespectful words against the
President’ ” and other officials, and an 1801 directive
limiting electioneering by top government employees.
Brief for Union Respondent 3. But those examples at most
show that the government was understood to have power
to limit employee speech that threatened important
governmental interests (such as maintaining military
discipline and preventing corruption)—not that public
employees’ speech was entirely unprotected. Indeed, more
recently this Court has upheld similar restrictions even
while recognizing that government employees possess
First Amendment rights. See, e.g., Brown v. Glines, 444
U.S. 348, 353 (1980) (upholding military restriction on
speech that threatened troop readiness); Civil Service
Comm’n v. Letter Carriers, 413 U.S. 548, 556–557 (1973)
(upholding limits on public employees’ political activities).
Ultimately, the Union relies, not on founding-era
evidence, but on dictum from a 1983 opinion of this Court
stating that, “[f]or most of th[e 20th] century, the
unchallenged dogma was that a public employee had no
right to object to conditions placed upon the terms of
employment—including those which restricted the
exercise of constitutional rights.” Connick v. Myers, 461
U.S. 138, 143; see Brief for Union Respondent 2, 17. Even
on its own terms, this dictum about 20th-century views
does not purport to describe how the First Amendment
was understood in 1791. And a careful examination of the
decisions by this Court that Connick cited to support its
dictum, see 461 U.S., at 144, reveals that none of them
rested on the facile premise that public employees are
unprotected by the First Amendment. Instead, they
considered (much as we do today) whether particular
speech restrictions were “necessary to protect”
Cite as: 585 U. S. ____ (2018) 21
Opinion of the Court
fundamental government interests. Curtis, supra, at 374.
The Union has also failed to show that, even if public
employees enjoyed free speech rights, the First
Amendment was nonetheless originally understood to
allow forced subsidies like those at issue here. We can
safely say that, at the time of the adoption of the First
Amendment, no one gave any thought to whether public-
sector unions could charge nonmembers agency fees.
Entities resembling labor unions did not exist at the
founding, and public-sector unions did not emerge until
the mid-20th century. The idea of public-sector
unionization and agency fees would astound those who
framed and ratified the Bill of Rights.7 Thus, the Union
cannot point to any accepted founding-era practice that
even remotely resembles the compulsory assessment of
agency fees from public-sector employees. We do know,
however, that prominent members of the founding
generation condemned laws requiring public employees to
affirm or support beliefs with which they disagreed. As
noted, Jefferson denounced compelled support for such
beliefs as “ ‘sinful and tyrannical,’ ” supra, at 9, and others
expressed similar views.8
——————
7 Indeed, under common law, “collective bargaining was unlawful,”
Teamsters v. Terry, 494 U.S. 558, 565–566 (1990) (plurality opinion);
see N. Citrine, Trade Union Law 4–7, 9–10 (2d ed. 1960); Notes, Legal­
ity of Trade Unions at Common Law, 25 Harv. L. Rev. 465, 466 (1912),
and into the 20th century, every individual employee had the “liberty of
contract” to “sell his labor upon such terms as he deem[ed] proper,”
Adair v. United States, 208 U.S. 161, 174–175 (1908); see R. Morris,
Government and Labor in Early America 208, 529 (1946). So even the
concept of a private third-party entity with the power to bind employees
on the terms of their employment likely would have been foreign to the
Founders. We note this only to show the problems inherent in the
Union respondent’s argument; we are not in any way questioning the
foundations of modern labor law.
8 See, e.g., Ellsworth, The Landholder, VII (1787), in Essays on the
Constitution of the United States 167–171 (P. Ford ed. 1892); Webster,
On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclu­
22 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
In short, the Union has offered no basis for concluding
that Abood is supported by the original understanding of
the First Amendment.
B
The principal defense of Abood advanced by respondents
and the dissent is based on our decision in Pickering, 391
U.S. 563, which held that a school district violated the
First Amendment by firing a teacher for writing a letter
critical of the school administration. Under Pickering and
later cases in the same line, employee speech is largely
unprotected if it is part of what the employee is paid to do,
see Garcetti v. Ceballos, 547 U.S. 410, 421–422 (2006), or
if it involved a matter of only private concern, see Connick,
supra, at 146–149. On the other hand, when a public
employee speaks as a citizen on a matter of public concern,
the employee’s speech is protected unless “ ‘the interest of
the state, as an employer, in promoting the efficiency of
the public services it performs through its employees’
outweighs ‘the interests of the [employee], as a citizen, in
commenting upon matters of public concern.’ ” Harris, 573
U. S., at ___ (slip op., at 35) (quoting Pickering, supra, at
568). Pickering was the centerpiece of the defense of
Abood in Harris, see 573 U. S., at ___–___ (slip op., at 17–
21) (KAGAN, J., dissenting), and we found the argument
unpersuasive, see id., at ___–___ (slip op., at 34–37). The
intervening years have not improved its appeal.
1
As we pointed out in Harris, Abood was not based on
Pickering. 573 U. S., at ___, and n. 26 (slip op., at 34, and
n. 26). The Abood majority cited the case exactly once—in
a footnote—and then merely to acknowledge that “there
may be limits on the extent to which an employee in a
——————
sions from Office, in A Collection of Essays and Fugitiv[e] Writings
151–153 (1790).
Cite as: 585 U. S. ____ (2018) 23
Opinion of the Court
sensitive or policymaking position may freely criticize his
superiors and the policies they espouse.” 431 U.S., at 230,
n. 27. That aside has no bearing on the agency-fee issue
here.9
Respondents’ reliance on Pickering is thus “an effort to
find a new justification for the decision in Abood.” Harris,
supra, at ___ (slip op., at 34). And we have previously
taken a dim view of similar attempts to recast problematic
First Amendment decisions. See, e.g., Citizens United v.
Federal Election Comm’n, 558 U.S. 310, 348–349, 363
(2010) (rejecting efforts to recast Austin v. Michigan
Chamber of Commerce, 494 U.S. 652 (1990)); see also
Citizens United, supra, at 382–385 (ROBERTS, C. J., con­
curring). We see no good reason, at this late date, to try to
shoehorn Abood into the Pickering framework.
2
Even if that were attempted, the shoe would be a pain­
ful fit for at least three reasons.
First, the Pickering framework was developed for use in
a very different context—in cases that involve “one em­
ployee’s speech and its impact on that employee’s public
responsibilities.” United States v. Treasury Employees,
513 U.S. 454, 467 (1995). This case, by contrast, involves
a blanket requirement that all employees subsidize speech
with which they may not agree. While we have sometimes
looked to Pickering in considering general rules that affect
broad categories of employees, we have acknowledged that
——————
9 JusticePowell’s separate opinion did invoke Pickering in a relevant
sense, but he did so only to acknowledge the State’s relatively greater
interest in regulating speech when it acts as employer than when it
acts as sovereign. Abood v. Detroit Bd. of Ed., 431 U.S. 209, 259 (1977)
(concurring in judgment). In the very next sentence, he explained that
“even in public employment, a significant impairment of First Amend­
ment rights must survive exacting scrutiny.” Ibid. (internal quotation
marks omitted). That is the test we apply today.
24 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
the standard Pickering analysis requires modification in
that situation. See 513 U.S., at 466–468, and n. 11. A
speech-restrictive law with “widespread impact,” we have
said, “gives rise to far more serious concerns than could
any single supervisory decision.” Id., at 468. Therefore,
when such a law is at issue, the government must shoul­
der a correspondingly “heav[ier]” burden, id., at 466, and
is entitled to considerably less deference in its assessment
that a predicted harm justifies a particular impingement
on First Amendment rights, see id., at 475–476, n. 21;
accord, id., at 482–483 (O’Connor, J., concurring in judg­
ment in part and dissenting in part). The end product of
those adjustments is a test that more closely resembles
exacting scrutiny than the traditional Pickering analysis.
The core collective-bargaining issue of wages and bene­
fits illustrates this point. Suppose that a single employee
complains that he or she should have received a 5% raise.
This individual complaint would likely constitute a matter
of only private concern and would therefore be unprotected
under Pickering. But a public-sector union’s demand for a
5% raise for the many thousands of employees it repre­
sents would be another matter entirely. Granting such a
raise could have a serious impact on the budget of the
government unit in question, and by the same token,
denying a raise might have a significant effect on the
performance of government services. When a large num­
ber of employees speak through their union, the category
of speech that is of public concern is greatly enlarged, and
the category of speech that is of only private concern is
substantially shrunk. By disputing this, post, at 13–14,
the dissent denies the obvious.
Second, the Pickering framework fits much less well
where the government compels speech or speech subsidies
in support of third parties. Pickering is based on the
insight that the speech of a public-sector employee may
interfere with the effective operation of a government
Cite as: 585 U. S. ____ (2018) 25
Opinion of the Court
office. When a public employer does not simply restrict
potentially disruptive speech but commands that its em­
ployees mouth a message on its own behalf, the calculus is
very different. Of course, if the speech in question is part
of an employee’s official duties, the employer may insist
that the employee deliver any lawful message. See Gar-
cetti, 547 U.S., at 421–422, 425–426. Otherwise, however,
it is not easy to imagine a situation in which a public
employer has a legitimate need to demand that its em­
ployees recite words with which they disagree. And we
have never applied Pickering in such a case.
Consider our decision in Connick. In that case, we held
that an assistant district attorney’s complaints about the
supervisors in her office were, for the most part, matters of
only private concern. 461 U.S., at 148. As a result, we
held, the district attorney could fire her for making those
comments. Id., at 154. Now, suppose that the assistant
had not made any critical comments about the supervisors
but that the district attorney, out of the blue, demanded
that she circulate a memo praising the supervisors.
Would her refusal to go along still be a matter of purely
private concern? And if not, would the order be justified
on the ground that the effective operation of the office
demanded that the assistant voice complimentary senti­
ments with which she disagreed? If Pickering applies
at all to compelled speech—a question that we do not
decide—it would certainly require adjustment in that
context.
Third, although both Pickering and Abood divided
speech into two categories, the cases’ categorization
schemes do not line up. Superimposing the Pickering
scheme on Abood would significantly change the Abood
regime.
Let us first look at speech that is not germane to collec­
tive bargaining but instead concerns political or ideologi­
cal issues. Under Abood, a public employer is flatly pro­
26 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
hibited from permitting nonmembers to be charged for
this speech, but under Pickering, the employees’ free
speech interests could be overcome if a court found that
the employer’s interests outweighed the employees’.
A similar problem arises with respect to speech that is
germane to collective bargaining. The parties dispute how
much of this speech is of public concern, but respondents
concede that much of it falls squarely into that category.
See Tr. of Oral Arg. 47, 65. Under Abood, nonmembers
may be required to pay for all this speech, but Pickering
would permit that practice only if the employer’s interests
outweighed those of the employees. Thus, recasting Abood
as an application of Pickering would substantially alter
the Abood scheme.
For all these reasons, Pickering is a poor fit indeed.
V
Even if we were to apply some form of Pickering, Illinois’
agency-fee arrangement would not survive.
A
Respondents begin by suggesting that union speech in
collective-bargaining and grievance proceedings should be
treated like the employee speech in Garcetti, i.e., as speech
“pursuant to [an employee’s] official duties,” 547 U.S., at
421. Many employees, in both the public and private
sectors, are paid to write or speak for the purpose of fur­
thering the interests of their employers. There are laws
that protect public employees from being compelled to say
things that they reasonably believe to be untrue or im­
proper, see id., at 425–426, but in general when public
employees are performing their job duties, their speech
may be controlled by their employer. Trying to fit union
speech into this framework, respondents now suggest that
the union speech funded by agency fees forms part of the
official duties of the union officers who engage in the
Cite as: 585 U. S. ____ (2018) 27
Opinion of the Court
speech. Brief for Union Respondent 22–23; see Brief for
State Respondents 23–24.
This argument distorts collective bargaining and griev­
ance adjustment beyond recognition. When an employee
engages in speech that is part of the employee’s job duties,
the employee’s words are really the words of the employer.
The employee is effectively the employer’s spokesperson.
But when a union negotiates with the employer or repre­
sents employees in disciplinary proceedings, the union
speaks for the employees, not the employer. Otherwise,
the employer would be negotiating with itself and disput­
ing its own actions. That is not what anybody under­
stands to be happening.
What is more, if the union’s speech is really the employ­
er’s speech, then the employer could dictate what the
union says. Unions, we trust, would be appalled by such a
suggestion. For these reasons, Garcetti is totally inappo­
site here.
B
Since the union speech paid for by agency fees is not
controlled by Garcetti, we move on to the next step of the
Pickering framework and ask whether the speech is on a
matter of public or only private concern. In Harris, the
dissent’s central argument in defense of Abood was that
union speech in collective bargaining, including speech
about wages and benefits, is basically a matter of only
private interest. See 573 U. S., at ___–___ (slip op., at 19–
20) (KAGAN, J., dissenting). We squarely rejected that
argument, see id., at ___–___ (slip op., at 35–36), and the
facts of the present case substantiate what we said at that
time: “[I]t is impossible to argue that the level of . . . state
spending for employee benefits . . . is not a matter of great
public concern,” id., at ___ (slip op., at 36).
Illinois, like some other States and a number of counties
and cities around the country, suffers from severe budget
28 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
problems.10 As of 2013, Illinois had nearly $160 billion in
unfunded pension and retiree healthcare liabilities.11 By
2017, that number had only grown, and the State was
grappling with $15 billion in unpaid bills.12 We are told
that a “quarter of the budget is now devoted to paying
down” those liabilities.13 These problems and others led
Moody’s and S&P to downgrade Illinois’ credit rating to
“one step above junk”—the “lowest ranking on record for a
U. S. state.”14
The Governor, on one side, and public-sector unions, on
the other, disagree sharply about what to do about these
problems. The State claims that its employment-related
debt is “ ‘squeezing core programs in education, public
safety, and human services, in addition to limiting [the
State’s] ability to pay [its] bills.’ ” Securities Act of 1933
Release No. 9389, 105 S.E. C. Docket 3381 (2013). It
therefore “told the Union that it would attempt to address
th[e financial] crisis, at least in part, through collective
bargaining.” Board Decision 12–13. And “the State’s
——————
10 See Brief for State of Michigan et al. as Amici Curiae 9–24. Na­
tionwide, the cost of state and local employees’ wages and benefits, for
example, is nearly $1.5 trillion—more than half of those jurisdictions’
total expenditures. See Dept. of Commerce, Bureau of Economic
Analysis, National Data, GDP & Personal Income, Table 6.2D, line 92
(Aug. 3, 2017), and Table 3.3, line 37 (May 30, 2018), https://www.bea.
gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=2&isuri=1&19
21=survey. And many States and cities struggle with unfunded pen­
sion and retiree healthcare liabilities and other budget issues.
11 PEW Charitable Trusts, Fiscal 50: State Trends and Analysis (up­
dated May 17, 2016), http://www.pewtrusts.org/en/research-and­
analysis/data-visualizations/2014/fiscal-50#ind4.
12 See Brief for Jason R. Barclay et al. as Amici Curiae 9; M. Egan,
How Illinois Became America’s Most Messed-Up State, CNN Money
(July 1, 2017), https://cnnmon.ie/2tp9NX5.
13 Brief for Jason R. Barclay et al. as Amici Curiae 9.
14 E. Campbell, S&P, Moody’s Downgrade Illinois to Near Junk, Low­
est Ever for a U. S. State, Bloomberg (June 1, 2017), https://
bloom.bg/2roEJUc.
Cite as: 585 U. S. ____ (2018) 29
Opinion of the Court
desire for savings” in fact “dr[o]ve [its] bargaining” posi­
tions on matters such as health-insurance benefits and
holiday, overtime, and promotion policies. Id., at 13;
Illinois Dept. of Central Management Servs. v. AFSCME,
Council 31, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec.
13, 2016) (ALJ Decision), pp. 26–28, 63–66, 224. But
when the State offered cost-saving proposals on these
issues, the Union countered with very different sugges­
tions. Among other things, it advocated wage and tax
increases, cutting spending “to Wall Street financial insti­
tutions,” and reforms to Illinois’ pension and tax systems
(such as closing “corporate tax loopholes,” “[e]xpanding the
base of the state sales tax,” and “allowing an income tax
that is adjusted in accordance with ability to pay”). Id., at
27–28. To suggest that speech on such matters is not of
great public concern—or that it is not directed at the
“public square,” post, at 16 (KAGAN, J., dissenting)—is to
deny reality.
In addition to affecting how public money is spent,
union speech in collective bargaining addresses many
other important matters. As the examples offered by
respondents’ own amici show, unions express views on a
wide range of subjects—education, child welfare,
healthcare, and minority rights, to name a few. See, e.g.,
Brief for American Federation of Teachers as Amicus
Curiae 15–27; Brief for Child Protective Service Workers
et al. as Amici Curiae 5–13; Brief for Human Rights Cam­
paign et al. as Amici Curiae 10–17; Brief for National
Women’s Law Center et al. as Amici Curiae 14–30. What
unions have to say on these matters in the context of
collective bargaining is of great public importance.
Take the example of education, which was the focus of
briefing and argument in Friedrichs. The public im­
portance of subsidized union speech is especially apparent
in this field, since educators make up by far the largest
category of state and local government employees, and
30 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
education is typically the largest component of state and
local government expenditures.15
Speech in this area also touches on fundamental ques­
tions of education policy. Should teacher pay be based on
seniority, the better to retain experienced teachers? Or
should schools adopt merit-pay systems to encourage
teachers to get the best results out of their students?16
Should districts transfer more experienced teachers to the
lower performing schools that may have the greatest need
for their skills, or should those teachers be allowed to stay
where they have put down roots?17 Should teachers be
given tenure protection and, if so, under what conditions?
On what grounds and pursuant to what procedures should
teachers be subject to discipline or dismissal? How should
teacher performance and student progress be measured—
by standardized tests or other means?
Unions can also speak out in collective bargaining on
controversial subjects such as climate change,18 the Con­
federacy,19 sexual orientation and gender identity,20 evolu­
tion,21 and minority religions.22 These are sensitive politi­
——————
15 See National Association of State Budget Officers, Summary:
Spring 2018 Fiscal Survey of States 2 (June 14, 2018),
http://www.nasbo.org; ProQuest Statistical Abstract of the United
States: 2018, pp. 306, Table 476, 321, Table 489.
16 See Rogers, School Districts ‘Race to the Top’ Despite Teacher Dis­
pute, Marin Independent J., June 19, 2010.
17 See Sawchuk, Transferring Top Teachers Has Benefits: Study
Probes Moving Talent to Low-Performing Schools, Education Week,
Nov. 13, 2013, pp. 1, 13.
18 See Tucker, Textbooks Equivocate on Global Warming: Stanford
Study Finds Portrayal ‘Dishonest,’ San Francisco Chronicle, Nov. 24,
2015, p. C1.
19 See Reagan, Anti-Confederacy Movement Rekindles Texas Text­
book Controversy, San Antonio Current, Aug. 4, 2015.
20 See Watanabe, How To Teach Gay Issues in 1st Grade? A New Law
Requiring California Schools To Have Lessons About LGBT Americans
Raises Tough Questions, L. A. Times, Oct. 16, 2011, p. A1.
21 See Goodstein, A Web of Faith, Law and Science in Evolution Suit,
Cite as: 585 U. S. ____ (2018) 31
Opinion of the Court
cal topics, and they are undoubtedly matters of profound
“ ‘value and concern to the public.’ ” Snyder v. Phelps, 562
U.S. 443, 453 (2011). We have often recognized that such
speech “ ‘occupies the highest rung of the hierarchy of First
Amendment values’ ” and merits “ ‘special protection.’ ” Id.,
at 452.
What does the dissent say about the prevalence of such
issues? The most that it is willing to admit is that “some”
issues that arise in collective bargaining “raise important
non-budgetary disputes.” Post, at 17. Here again, the
dissent refuses to recognize what actually occurs in public-
sector collective bargaining.
Even union speech in the handling of grievances may be
of substantial public importance and may be directed at
the “public square.” Post, at 16. For instance, the Union
respondent in this case recently filed a grievance seeking
to compel Illinois to appropriate $75 million to fund a 2%
wage increase. State v. AFSCME Council 31, 2016 IL
118422, 51 N.E.3d 738, 740–742, and n. 4. In short, the
union speech at issue in this case is overwhelmingly of
substantial public concern.
C
The only remaining question under Pickering is whether
the State’s proffered interests justify the heavy burden
that agency fees inflict on nonmembers’ First Amendment
interests. We have already addressed the state interests
asserted in Abood—promoting “labor peace” and avoiding
free riders, see supra, at 11–18—and we will not repeat
that analysis.
In Harris and this case, defenders of Abood have as-
serted a different state interest—in the words of the Harris
dissent, the State’s “interest in bargaining with an ade­
——————
N. Y. Times, Sept. 26, 2005, p. A1.
22 See Golden, Defending the Faith: New Battleground in Textbook
Wars: Religion in History, Wall St. J., Jan. 25, 2006, p. A1.
32 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
quately funded exclusive bargaining agent.” 573 U. S., at
___ (KAGAN, J., dissenting) (slip op., at 7); see also post, at
6–7 (KAGAN, J., dissenting). This was not “the interest
Abood recognized and protected,” Harris, supra, at ___
(slip op., at 7) (KAGAN, J., dissenting), and, in any event, it
is insufficient.
Although the dissent would accept without any serious
independent evaluation the State’s assertion that the
absence of agency fees would cripple public-sector unions
and thus impair the efficiency of government operations,
see post, at 8–9, 11, ample experience, as we have noted,
supra, at 12, shows that this is questionable.
Especially in light of the more rigorous form of Pickering
analysis that would apply in this context, see supra, at 23–
25, the balance tips decisively in favor of the employees’
free speech rights.23
——————
23 Claiming that our decision will hobble government operations, the
dissent asserts that it would prevent a government employer from
taking action against disruptive non-unionized employees in two
carefully constructed hypothetical situations. See post, at 17–18. Both
hypotheticals are short on potentially important details, but in any
event, neither would be affected by our decision in this case. Rather,
both would simply call for the application of the standard Pickering
test.
In one of the hypotheticals, teachers “protest merit pay in the school
cafeteria.” Post, at 17. If such a case actually arose, it would be im­
portant to know, among other things, whether the teachers involved
were supposed to be teaching in their classrooms at the time in ques­
tion and whether the protest occurred in the presence of students
during the student lunch period. If both those conditions were met, the
teachers would presumably be violating content-neutral rules regarding
their duty to teach at specified times and places, and their conduct
might well have a disruptive effect on the educational process. Thus, in
the dissent’s hypothetical, the school’s interests might well outweigh
those of the teachers, but in this hypothetical case, as in all Pickering
cases, the particular facts would be very important.
In the other hypothetical, employees agitate for a better health plan
“at various inopportune times and places.” Post, at 17. Here, the lack
of factual detail makes it impossible to evaluate how the Pickering
Cite as: 585 U. S. ____ (2018) 33
Opinion of the Court
We readily acknowledge, as Pickering did, that “the
State has interests as an employer in regulating the
speech of its employees that differ significantly from those
it possesses in connection with regulation of the speech of
the citizenry in general.” 391 U.S., at 568. Our analysis
is consistent with that principle. The exacting scrutiny
standard we apply in this case was developed in the con­
text of commercial speech, another area where the gov­
ernment has traditionally enjoyed greater-than-usual
power to regulate speech. See supra, at 10. It is also not
disputed that the State may require that a union serve as
exclusive bargaining agent for its employees—itself a
significant impingement on associational freedoms that
would not be tolerated in other contexts. We simply draw
the line at allowing the government to go further still and
require all employees to support the union irrespective of
whether they share its views. Nothing in the Pickering
line of cases requires us to uphold every speech restriction
the government imposes as an employer. See Pickering,
supra, at 564–566 (holding teacher’s dismissal for criticiz­
ing school board unconstitutional); Rankin v. McPherson,
483 U.S. 378, 392 (1987) (holding clerical employ-
ee’s dismissal for supporting assassination attempt on
President unconstitutional); Treasury Employees, 513
U.S., at 477 (holding federal-employee honoraria ban
unconstitutional).
VI
For the reasons given above, we conclude that public-
sector agency-shop arrangements violate the First
Amendment, and Abood erred in concluding otherwise.
There remains the question whether stare decisis nonethe­
less counsels against overruling Abood. It does not.
——————
balance would come out. The term “agitat[ion]” can encompass a wide
range of conduct, as well as speech. Post, at 17. And the time and
place of the agitation would also be important.
34 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
“Stare decisis is the preferred course because it pro­
motes the evenhanded, predictable, and consistent devel­
opment of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee, 501
U.S. 808, 827 (1991). We will not overturn a past decision
unless there are strong grounds for doing so. United
States v. International Business Machines Corp., 517 U.S.
843, 855–856 (1996); Citizens United, 558 U.S., at 377
(ROBERTS, C. J., concurring). But as we have often recog­
nized, stare decisis is “ ‘not an inexorable command.’ ”
Pearson v. Callahan, 555 U.S. 223, 233 (2009); see also
Lawrence v. Texas, 539 U.S. 558, 577 (2003); State Oil Co.
v. Khan, 522 U.S. 3, 20 (1997); Agostini v. Felton, 521
U.S. 203, 235 (1997); Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 63 (1996); Payne, supra, at 828.
The doctrine “is at its weakest when we interpret the
Constitution because our interpretation can be altered
only by constitutional amendment or by overruling our
prior decisions.” Agostini, supra, at 235. And stare decisis
applies with perhaps least force of all to decisions that
wrongly denied First Amendment rights: “This Court has
not hesitated to overrule decisions offensive to the First
Amendment (a fixed star in our constitutional constella­
tion, if there is one).” Federal Election Comm’n v. Wiscon-
sin Right to Life, Inc., 551 U.S. 449, 500 (2007) (Scalia, J.,
concurring in part and concurring in judgment) (internal
quotation marks omitted); see also Citizens United, supra,
at 362–365 (overruling Austin, 494 U.S. 652); Barnette,
319 U.S., at 642 (overruling Minersville School Dist. v.
Gobitis, 310 U.S. 586 (1940)).
Our cases identify factors that should be taken into
account in deciding whether to overrule a past decision.
Five of these are most important here: the quality of
Abood’s reasoning, the workability of the rule it estab­
lished, its consistency with other related decisions, devel­
Cite as: 585 U. S. ____ (2018) 35
Opinion of the Court
opments since the decision was handed down, and reliance
on the decision. After analyzing these factors, we conclude
that stare decisis does not require us to retain Abood.
A
An important factor in determining whether a precedent
should be overruled is the quality of its reasoning, see
Citizens United, 558 U.S., at 363–364; id., at 382–385
(ROBERTS, C. J., concurring); Lawrence, 539 U.S., at 577–
578, and as we explained in Harris, Abood was poorly
reasoned, see 573 U. S., at ___–___ (slip op., at 17–20). We
will summarize, but not repeat, Harris’s lengthy discus­
sion of the issue.
Abood went wrong at the start when it concluded that
two prior decisions, Railway Employes v. Hanson, 351
U.S. 225 (1956), and Machinists v. Street, 367 U.S. 740
(1961), “appear[ed] to require validation of the agency-
shop agreement before [the Court].” 431 U.S., at 226.
Properly understood, those decisions did no such thing.
Both cases involved Congress’s “bare authorization” of
private-sector union shops under the Railway Labor Act.
Street, supra, at 749 (emphasis added).24 Abood failed to
appreciate that a very different First Amendment question
——————
24 No First Amendment issue could have properly arisen in those
cases unless Congress’s enactment of a provision allowing, but not
requiring, private parties to enter into union-shop arrangements was
sufficient to establish governmental action. That proposition was
debatable when Abood was decided, and is even more questionable
today. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53
(1999); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974).
Compare, e.g., White v. Communications Workers of Am., AFL–CIO,
Local 13000, 370 F.3d 346, 350 (CA3 2004) (no state action), and
Kolinske v. Lubbers, 712 F.2d 471, 477–478 (CADC 1983) (same), with
Beck v. Communications Workers of Am., 776 F.2d 1187, 1207 (CA4
1985) (state action), and Linscott v. Millers Falls Co., 440 F.2d 14, 16,
and n. 2 (CA1 1971) (same). We reserved decision on this question in
Communications Workers v. Beck, 487 U.S. 735, 761 (1988), and do not
resolve it here.
36 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
arises when a State requires its employees to pay agency
fees. See Harris, supra, at ___ (slip op., at 17).
Moreover, neither Hanson nor Street gave careful con­
sideration to the First Amendment. In Hanson, the pri­
mary questions were whether Congress exceeded its power
under the Commerce Clause or violated substantive due
process by authorizing private union-shop arrangements
under the Commerce and Due Process Clauses. 351 U.S.,
at 233–235. After deciding those questions, the Court
summarily dismissed what was essentially a facial First
Amendment challenge, noting that the record did not
substantiate the challengers’ claim. Id., at 238; see Har-
ris, supra, at ___ (slip op., at 17). For its part, Street was
decided as a matter of statutory construction, and so did
not reach any constitutional issue. 367 U.S., at 749–750,
768–769. Abood nevertheless took the view that Hanson
and Street “all but decided” the important free speech
issue that was before the Court. Harris, 573 U. S., at ___
(slip op., at 17). As we said in Harris, “[s]urely a First
Amendment issue of this importance deserved better
treatment.” Ibid.
Abood’s unwarranted reliance on Hanson and Street
appears to have contributed to another mistake: Abood
judged the constitutionality of public-sector agency fees
under a deferential standard that finds no support in our
free speech cases. (As noted, supra, at 10–11, today’s
dissent makes the same fundamental mistake.) Abood did
not independently evaluate the strength of the govern­
ment interests that were said to support the challenged
agency-fee provision; nor did it ask how well that provision
actually promoted those interests or whether they could
have been adequately served without impinging so heavily
on the free speech rights of nonmembers. Rather, Abood
followed Hanson and Street, which it interpreted as having
deferred to “the legislative assessment of the important
contribution of the union shop to the system of labor rela­
Cite as: 585 U. S. ____ (2018) 37
Opinion of the Court
tions established by Congress.” 431 U.S., at 222 (empha­
sis added). But Hanson deferred to that judgment in
deciding the Commerce Clause and substantive due pro­
cess questions that were the focus of the case. Such defer­
ence to legislative judgments is inappropriate in deciding
free speech issues.
If Abood had considered whether agency fees were
actually needed to serve the asserted state interests, it
might not have made the serious mistake of assuming that
one of those interests—“labor peace”—demanded, not only
that a single union be designated as the exclusive repre­
sentative of all the employees in the relevant unit, but also
that nonmembers be required to pay agency fees. Defer­
ring to a perceived legislative judgment, Abood failed to
see that the designation of a union as exclusive repre­
sentative and the imposition of agency fees are not inex­
tricably linked. See supra, at 11–12; Harris, supra, at ___
(slip op., at 31).
Abood also did not sufficiently take into account the
difference between the effects of agency fees in public- and
private-sector collective bargaining. The challengers in
Abood argued that collective bargaining with a govern­
ment employer, unlike collective bargaining in the private
sector, involves “inherently ‘political’ ” speech. 431 U.S.,
at 226. The Court did not dispute that characterization,
and in fact conceded that “decisionmaking by a public
employer is above all a political process” driven more by
policy concerns than economic ones. Id., at 228; see id., at
228–231. But (again invoking Hanson), the Abood Court
asserted that public employees do not have “weightier
First Amendment interest[s]” against compelled speech
than do private employees. Id., at 229. That missed the
point. Assuming for the sake of argument that the First
Amendment applies at all to private-sector agency-shop
arrangements, the individual interests at stake still differ.
“In the public sector, core issues such as wages, pensions,
38 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
and benefits are important political issues, but that is
generally not so in the private sector.” Harris, 573 U. S.,
at ___ (slip op., at 17).
Overlooking the importance of this distinction, “Abood
failed to appreciate the conceptual difficulty of distin­
guishing in public-sector cases between union expendi­
tures that are made for collective-bargaining purposes and
those that are made to achieve political ends.” Id., at ___
(slip op., at 18). Likewise, “Abood does not seem to have
anticipated the magnitude of the practical administrative
problems that would result in attempting to classify
public-sector union expenditures as either ‘chargeable’ . . . or
nonchargeable.” Ibid. Nor did Abood “foresee the practi­
cal problems that would face objecting nonmembers.” Id.,
at ___ (slip op., at 19).
In sum, as detailed in Harris, Abood was not well
reasoned.25
B
Another relevant consideration in the stare decisis
calculus is the workability of the precedent in question,
Montejo v. Louisiana, 556 U.S. 778, 792 (2009), and that
factor also weighs against Abood.
1
Abood’s line between chargeable and nonchargeable
union expenditures has proved to be impossible to draw
with precision. We tried to give the line some definition in
Lehnert. There, a majority of the Court adopted a three-
part test requiring that chargeable expenses (1) be “ ‘ger­
——————
25 Contrary to the dissent’s claim, see post, at 19, and n. 4, the fact
that “[t]he rationale of [Abood] does not withstand careful analysis” is a
reason to overrule it, e.g., Lawrence v. Texas, 539 U.S. 558, 577 (2003).
And that is even truer when, as here, the defenders of the precedent do
not attempt to “defend [its actual] reasoning.” Citizens United v.
Federal Election Comm’n, 558 U.S. 310, 363 (2010); id., at 382–385
(ROBERTS, C. J., concurring).
Cite as: 585 U. S. ____ (2018) 39
Opinion of the Court
mane’ ” to collective bargaining, (2) be “justified” by the
government’s labor-peace and free-rider interests, and (3)
not add “significantly” to the burden on free speech, 500
U.S., at 519, but the Court splintered over the application
of this test, see id., at 519–522 (plurality opinion); id., at
533–534 (Marshall, J., concurring in part and dissenting
in part). That division was not surprising. As the Lehnert
dissenters aptly observed, each part of the majority’s test
“involves a substantial judgment call,” id., at 551 (opinion
of Scalia, J.), rendering the test “altogether malleable” and
“no[t] principled,” id., at 563 (KENNEDY, J., concurring in
judgment in part and dissenting in part).
Justice Scalia presciently warned that Lehnert’s amor­
phous standard would invite “perpetua[l] give-it-a-try
litigation,” id., at 551, and the Court’s experience with
union lobbying expenses illustrates the point. The Lehnert
plurality held that money spent on lobbying for increased
education funding was not chargeable. Id., at 519–522.
But Justice Marshall—applying the same three-prong
test—reached precisely the opposite conclusion. Id., at
533–542. And Lehnert failed to settle the matter; States
and unions have continued to “give it a try” ever since.
In Knox, for example, we confronted a union’s claim that
the costs of lobbying the legislature and the electorate
about a ballot measure were chargeable expenses under
Lehnert. See Brief for Respondent in Knox v. Service
Employees, O. T. 2011, No. 10–1121, pp. 48–53. The Court
rejected this claim out of hand, 567 U.S., at 320–321, but
the dissent refused to do so, id., at 336 (opinion of BREYER,
J.). And in the present case, nonmembers are required to
pay for unspecified “[l]obbying” expenses and for
“[s]ervices” that “may ultimately inure to the benefit of the
members of the local bargaining unit.” App. to Pet. for
Cert. 31a–32a. That formulation is broad enough to en­
compass just about anything that the union might choose
to do.
40 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
Respondents agree that Abood’s chargeable-
nonchargeable line suffers from “a vagueness problem,”
that it sometimes “allows what it shouldn’t allow,” and
that “a firm[er] line c[ould] be drawn.” Tr. of Oral Arg.
47–48. They therefore argue that we should “consider
revisiting” this part of Abood. Tr. of Oral Arg. 66; see
Brief for Union Respondent 46–47; Brief for State Re­
spondents 30. This concession only underscores the real-
ity that Abood has proved unworkable: Not even the par­
ties defending agency fees support the line that it has
taken this Court over 40 years to draw.
2
Objecting employees also face a daunting and expensive
task if they wish to challenge union chargeability deter­
minations. While Hudson requires a union to provide
nonmembers with “sufficient information to gauge the
propriety of the union’s fee,” 475 U.S., at 306, the Hudson
notice in the present case and in others that have come
before us do not begin to permit a nonmember to make
such a determination.
In this case, the notice lists categories of expenses and
sets out the amount in each category that is said to be
attributable to chargeable and nonchargeable expenses.
Here are some examples regarding the Union respondent’s
expenditures:
Cite as: 585 U. S. ____ (2018) 41
Opinion of the Court
Chargeable
Category Total Expense
Expense
Salary and
$14,718,708 $11,830,230
Benefits
Office Printing,
Supplies, and $148,272 $127,959
Advertising
Postage and
$373,509 $268,107
Freight
Telephone $214,820 $192,721
Convention
$268,855 $268,855
Expense
See App. to Pet. for Cert. 35a–36a.
How could any nonmember determine whether these
numbers are even close to the mark without launching a
legal challenge and retaining the services of attorneys and
accountants? Indeed, even with such services, it would be
a laborious and difficult task to check these figures.26
The Union respondent argues that challenging its
chargeability determinations is not burdensome because
the Union pays for the costs of arbitration, see Brief for
Union Respondent 10–11, but objectors must still pay for
the attorneys and experts needed to mount a serious
challenge. And the attorney’s fees incurred in such a
proceeding can be substantial. See, e.g., Knox v. Chiang,
2013 WL 2434606, *15 (ED Cal., June 5, 2013) (attorney’s
fees in Knox exceeded $1 million). The Union respondent’s
suggestion that an objector could obtain adequate review
without even showing up at an arbitration, see App. to
Pet. for Cert. 40a–41a, is therefore farfetched.
——————
26 For this reason, it is hardly surprising that chargeability issues
have not arisen in many Court of Appeals cases. See post, at 22
(KAGAN, J., dissenting).
42 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
C
Developments since Abood, both factual and legal, have
also “eroded” the decision’s “underpinnings” and left it an
outlier among our First Amendment cases. United States
v. Gaudin, 515 U.S. 506, 521 (1995).
1
Abood pinned its result on the “unsupported empirical
assumption” that “the principle of exclusive representation
in the public sector is dependent on a union or agency
shop.” Harris, 573 U. S., at ___ (slip op., at 20); Abood,
431 U.S., at 220–222. But, as already noted, experience
has shown otherwise. See supra, at 11–12.
It is also significant that the Court decided Abood
against a very different legal and economic backdrop.
Public-sector unionism was a relatively new phenomenon
in 1977. The first State to permit collective bargaining by
government employees was Wisconsin in 1959, R. Kearney
& P. Mareschal, Labor Relations in the Public Sector 64
(5th ed. 2014), and public-sector union membership re­
mained relatively low until a “spurt” in the late 1960’s and
early 1970’s, shortly before Abood was decided, Freeman,
Unionism Comes to the Public Sector, 24 J. Econ. Lit. 41,
45 (1986). Since then, public-sector union membership
has come to surpass private-sector union membership,
even though there are nearly four times as many total
private-sector employees as public-sector employees. B.
Hirsch & D. Macpherson, Union Membership and Earn­
ings Data Book 9–10, 12, 16 (2013 ed.).
This ascendance of public-sector unions has been
marked by a parallel increase in public spending. In 1970,
total state and local government expenditures amounted
to $646 per capita in nominal terms, or about $4,000 per
capita in 2014 dollars. See Dept. of Commerce, Statistical
Abstract of the United States: 1972, p. 419; CPI Inflation
Calculator, BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By
Cite as: 585 U. S. ____ (2018) 43
Opinion of the Court
2014, that figure had ballooned to approximately $10,238
per capita. ProQuest, Statistical Abstract of the United
States: 2018, pp. 17, Table 14, 300, Table 469. Not all that
increase can be attributed to public-sector unions, of
course, but the mounting costs of public-employee wages,
benefits, and pensions undoubtedly played a substantial
role. We are told, for example, that Illinois’ pension funds
are underfunded by $129 billion as a result of generous
public-employee retirement packages. Brief for Jason R.
Barclay et al. as Amici Curiae 9, 14. Unsustainable collective-
bargaining agreements have also been blamed for multiple
municipal bankruptcies. See Brief for State of Michigan
et al. as Amici Curiae 10–19. These developments, and
the political debate over public spending and debt they
have spurred, have given collective-bargaining issues a
political valence that Abood did not fully appreciate.
2
Abood is also an “anomaly” in our First Amendment
jurisprudence, as we recognized in Harris and Knox.
Harris, supra, at ___ (slip op., at 8); Knox, 567 U.S., at
311. This is not an altogether new observation. In Abood
itself, Justice Powell faulted the Court for failing to per­
form the “ ‘exacting scrutiny’ ” applied in other cases in­
volving significant impingements on First Amendment
rights. 431 U.S., at 259; see id., at 259–260, and n. 14.
Our later cases involving compelled speech and associa­
tion have also employed exacting scrutiny, if not a more
demanding standard. See, e.g., Roberts, 468 U.S., at 623;
United Foods, 533 U.S., at 414. And we have more re­
cently refused, even in agency-fee cases, to extend Abood
beyond circumstances where it directly controls. See
Knox, supra, at 314; Harris, supra, at ___–___ (slip op., at
28–29).
Abood particularly sticks out when viewed against our
44 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
cases holding that public employees generally may not be
required to support a political party. See Elrod, 427 U.S.
347; Branti, 445 U.S. 507; Rutan, 497 U.S. 62; O’Hare
Truck Service, Inc. v. City of Northlake, 518 U.S. 712
(1996). The Court reached that conclusion despite a “long
tradition” of political patronage in government. Rutan,
supra, at 95 (Scalia, J., dissenting); see also Elrod, 427
U.S., at 353 (plurality opinion); id., at 377–378 (Powell,
J., dissenting). It is an odd feature of our First Amend­
ment cases that political patronage has been deemed
largely unconstitutional, while forced subsidization of
union speech (which has no such pedigree) has been largely
permitted. As Justice Powell observed: “I am at a loss
to understand why the State’s decision to adopt the agency
shop in the public sector should be worthy of greater defer­
ence, when challenged on First Amendment grounds, than
its decision to adhere to the tradition of political patron­
age.” Abood, supra, at 260, n. 14 (opinion concurring in
judgment) (citing Elrod, supra, at 376–380, 382–387
(Powell, J., dissenting); emphasis added). We have no
occasion here to reconsider our political patronage deci­
sions, but Justice Powell’s observation is sound as far as it
goes. By overruling Abood, we end the oddity of privileg­
ing compelled union support over compelled party support
and bring a measure of greater coherence to our First
Amendment law.
D
In some cases, reliance provides a strong reason for
adhering to established law, see, e.g., Hilton v. South
Carolina Public Railways Comm’n, 502 U.S. 197, 202–203
(1991), and this is the factor that is stressed most strongly
by respondents, their amici, and the dissent. They con­
tend that collective-bargaining agreements now in effect
were negotiated with agency fees in mind and that unions
may have given up other benefits in exchange for provi­
Cite as: 585 U. S. ____ (2018) 45
Opinion of the Court
sions granting them such fees. Tr. of Oral Arg. 67–68; see
Brief for State Respondents 54; Brief for Union Respond­
ent 50; post, at 22–26 (KAGAN, J., dissenting). In this case,
however, reliance does not carry decisive weight.
For one thing, it would be unconscionable to permit free
speech rights to be abridged in perpetuity in order to
preserve contract provisions that will expire on their own
in a few years’ time. “The fact that [public-sector unions]
may view [agency fees] as an entitlement does not estab­
lish the sort of reliance interest that could outweigh the
countervailing interest that [nonmembers] share in having
their constitutional rights fully protected.” Arizona v.
Gant, 556 U.S. 332, 349 (2009).
For another, Abood does not provide “a clear or easily
applicable standard, so arguments for reliance based on its
clarity are misplaced.” South Dakota v. Wayfair, Inc.,
ante, at 20; see supra, at 38–41.
This is especially so because public-sector unions have
been on notice for years regarding this Court’s misgivings
about Abood. In Knox, decided in 2012, we described
Abood as a First Amendment “anomaly.” 567 U.S., at
311. Two years later in Harris, we were asked to overrule
Abood, and while we found it unnecessary to take that
step, we cataloged Abood’s many weaknesses. In 2015, we
granted a petition for certiorari asking us to review a
decision that sustained an agency-fee arrangement under
Abood. Friedrichs v. California Teachers Assn., 576 U. S.
___. After exhaustive briefing and argument on the ques­
tion whether Abood should be overruled, we affirmed the
decision below by an equally divided vote. 578 U. S. ___
(2016) (per curiam). During this period of time, any public-
sector union seeking an agency-fee provision in a collective-
bargaining agreement must have understood that the
constitutionality of such a provision was uncertain.
That is certainly true with respect to the collective-
bargaining agreement in the present case. That agree­
46 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
ment initially ran from July 1, 2012, until June 30, 2015.
App. 331. Since then, the agreement has been extended
pursuant to a provision providing for automatic renewal
for an additional year unless either party gives timely
notice that it desires to amend or terminate the contract.
Ibid. Thus, for the past three years, the Union could not
have been confident about the continuation of the agency-
fee arrangement for more than a year at a time.
Because public-sector collective-bargaining agreements
are generally of rather short duration, a great many of
those now in effect probably began or were renewed since
Knox (2012) or Harris (2014). But even if an agreement
antedates those decisions, the union was able to protect
itself if an agency-fee provision was essential to the overall
bargain. A union’s attorneys undoubtedly understand
that if one provision of a collective-bargaining agreement
is found to be unlawful, the remaining provisions are
likely to remain in effect. See NLRB v. Rockaway News
Supply Co., 345 U.S. 71, 76–79 (1953); see also 8 R. Lord,
Williston on Contracts §19:70 (4th ed. 2010). Any union
believing that an agency-fee provision was essential to its
bargain could have insisted on a provision giving it greater
protection. The agreement in the present case, by con­
trast, provides expressly that the invalidation of any part
of the agreement “shall not invalidate the remaining
portions,” which “shall remain in full force and effect.”
App. 328. Such severability clauses ensure that “entire
contracts” are not “br[ought] down” by today’s ruling.
Post, at 23, n. 5 (KAGAN, J., dissenting).
In short, the uncertain status of Abood, the lack of
clarity it provides, the short-term nature of collective-
bargaining agreements, and the ability of unions to protect
themselves if an agency-fee provision was crucial to its
bargain all work to undermine the force of reliance as a
Cite as: 585 U. S. ____ (2018) 47
Opinion of the Court
factor supporting Abood.27
* * *
We recognize that the loss of payments from nonmem­
bers may cause unions to experience unpleasant transition
costs in the short term, and may require unions to make
adjustments in order to attract and retain members. But
we must weigh these disadvantages against the consider­
able windfall that unions have received under Abood for
the past 41 years. It is hard to estimate how many bil­
lions of dollars have been taken from nonmembers and
transferred to public-sector unions in violation of the First
Amendment. Those unconstitutional exactions cannot be
allowed to continue indefinitely.
All these reasons—that Abood’s proponents have aban­
doned its reasoning, that the precedent has proved un­
workable, that it conflicts with other First Amendment
decisions, and that subsequent developments have eroded
its underpinnings—provide the “ ‘special justification[s]’ ”
for overruling Abood. Post, at 19 (KAGAN, J., dissenting)
(quoting Kimble v. Marvel Entertainment, LLC, 576 U. S.
___, ___ (2015) (slip op., at 8)).28
——————
27 The dissent emphasizes another type of reliance, namely, that
“[o]ver 20 States have by now enacted statutes authorizing [agency-fee]
provisions.” Post, at 23. But as we explained in Citizens United, “[t]his
is not a compelling interest for stare decisis. If it were, legislative acts
could prevent us from overruling our own precedents, thereby interfer­
ing with our duty ‘to say what the law is.’ ” 558 U.S., at 365 (quoting
Marbury v. Madison, 1 Cranch 137, 177 (1803)). Nor does our decision
“ ‘require an extensive legislative response.’ ” Post, at 23. States can
keep their labor-relations systems exactly as they are—only they
cannot force nonmembers to subsidize public-sector unions. In this
way, these States can follow the model of the federal government and
28 other States.
28 Unfortunately, the dissent sees the need to resort to accusations
that we are acting like “black-robed rulers” who have shut down an
“energetic policy debate.” Post, at 27–28. We certainly agree that
judges should not “overrid[e] citizens’ choices” or “pick the winning
48 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
VII
For these reasons, States and public-sector unions may
no longer extract agency fees from nonconsenting employ­
ees. Under Illinois law, if a public-sector collective-
bargaining agreement includes an agency-fee provision
and the union certifies to the employer the amount of the
fee, that amount is automatically deducted from the non­
member’s wages. §315/6(e). No form of employee consent
is required.
This procedure violates the First Amendment and can­
not continue. Neither an agency fee nor any other pay­
ment to the union may be deducted from a nonmember’s
wages, nor may any other attempt be made to collect such
a payment, unless the employee affirmatively consents to
pay. By agreeing to pay, nonmembers are waiving their
First Amendment rights, and such a waiver cannot be
presumed. Johnson v. Zerbst, 304 U.S. 458, 464 (1938);
see also Knox, 567 U.S., at 312–313. Rather, to be effec­
tive, the waiver must be freely given and shown by “clear
and compelling” evidence. Curtis Publishing Co. v. Butts,
388 U.S. 130, 145 (1967) (plurality opinion); see also
College Savings Bank v. Florida Prepaid Postsecondary
Ed. Expense Bd., 527 U.S. 666, 680–682 (1999). Unless
employees clearly and affirmatively consent before any
money is taken from them, this standard cannot be met.
——————
side,” ibid.—unless the Constitution commands that they do so. But
when a federal or state law violates the Constitution, the American
doctrine of judicial review requires us to enforce the Constitution.
Here, States with agency-fee laws have abridged fundamental free
speech rights. In holding that these laws violate the Constitution, we
are simply enforcing the First Amendment as properly understood,
“[t]he very purpose of [which] was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal principles to be
applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U.S.
624, 638 (1943).
Cite as: 585 U. S. ____ (2018) 49
Opinion of the Court
* * *
Abood was wrongly decided and is now overruled. The
judgment of the United States Court of Appeals for the
Seventh Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1466
_________________
MARK JANUS, PETITIONER v. AMERICAN FEDER-
ATION OF STATE, COUNTY, AND MUNICIPAL
EMPLOYEES, COUNCIL 31, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 27, 2018]
JUSTICE SOTOMAYOR, dissenting.
I join JUSTICE KAGAN’s dissent in full. Although I joined
the majority in Sorrell v. IMS Health Inc., 564 U.S. 552
(2011), I disagree with the way that this Court has since
interpreted and applied that opinion. See, e.g., National
Institute of Family and Life Advocates v. Becerra, ante,
p. ___. Having seen the troubling development in First
Amendment jurisprudence over the years, both in this
Court and in lower courts, I agree fully with JUSTICE
KAGAN that Sorrell—in the way it has been read by this
Court—has allowed courts to “wiel[d] the First Amend-
ment in . . . an aggressive way” just as the majority does
today. Post, at 27.
Cite as: 585 U. S. ____ (2018) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1466
_________________
MARK JANUS, PETITIONER v. AMERICAN FEDER-
ATION OF STATE, COUNTY, AND MUNICIPAL
EMPLOYEES, COUNCIL 31, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 27, 2018]
JUSTICE KAGAN, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join,
dissenting.
For over 40 years, Abood v. Detroit Bd. of Ed., 431 U.S.
209 (1977), struck a stable balance between public em-
ployees’ 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 pay-
ment could go to any of the union’s political or ideological
activities.
That holding 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. Abood
allowed governments to do just that. While protecting
public employees’ expression about non-workplace mat-
ters, the decision enabled a government to advance im-
portant managerial interests—by ensuring the presence of
2 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
an exclusive employee representative to bargain with. Far
from an “anomaly,” ante, at 7, the Abood regime was a
paradigmatic example of how the government can regulate
speech in its capacity as an employer.
Not any longer. Today, the Court succeeds in its 6-year
campaign to reverse Abood. See Friedrichs v. California
Teachers Assn., 578 U. S. ___ (2016) (per curiam); Harris
v. Quinn, 573 U. S. ___ (2014); Knox v. Service Employees,
567 U.S. 298 (2012). Its decision will have large-scale
consequences. Public employee unions will lose a secure
source of financial support. State and local governments
that thought fair-share provisions furthered their inter-
ests will need to find new ways of managing their work-
forces. Across the country, the relationships of public
employees and employers will alter in both predictable
and wholly unexpected ways.
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. There are no special
justifications for reversing Abood. It has proved workable.
No recent developments have eroded its underpinnings.
And it is deeply entrenched, in both the law and the real
world. More than 20 States have statutory schemes built
on the decision. Those laws underpin thousands of ongo-
ing contracts involving millions of employees. Reliance
interests do not come any stronger than those surrounding
Abood. And likewise, judicial disruption does not get any
greater than what the Court does today. I respectfully
dissent.
I
I begin with Abood, the 41-year-old precedent the major-
ity overrules. That case involved a union that had been
certified as the exclusive representative of Detroit’s public
school teachers. The union’s collective-bargaining agree-
ment with the city included an “agency shop” clause,
Cite as: 585 U. S. ____ (2018) 3
KAGAN, J., dissenting
which required teachers who had not joined the union to
pay it “a service charge equal to the regular dues required
of [u]nion members.” Abood, 431 U.S., at 212. A group of
non-union members sued over that clause, arguing that it
violated the First Amendment.
In considering their challenge, the Court canvassed the
purposes of the “agency shop” clause. It was rooted, the
Court understood, in the “principle of exclusive union
representation”—a “central element” in “industrial rela-
tions” since the New Deal. Id., at 220. Significant bene-
fits, the Court explained, could derive from the “designa-
tion of a single [union] representative” for all similarly
situated employees in a workplace. Ibid. In particular,
such arrangements: “avoid[ ] the confusion that would
result from attempting to enforce two or more agreements
specifying different terms and conditions of employment”;
“prevent[ ] inter-union rivalries from creating dissension
within the work force”; “free[ ] the employer from the
possibility of facing conflicting demands from different
unions”; and “permit[ ] the employer and a single union to
reach agreements and settlements that are not subject to
attack from rival labor organizations.” Id., at 220–221.
As proof, the Court pointed to the example of exclusive-
representation arrangements in the private-employment
sphere: There, Congress had long thought that such
schemes would promote “peaceful labor relations” and
“labor stability.” Id., at 219, 229. A public employer like
Detroit, the Court believed, could reasonably make the
same calculation.
But for an exclusive-bargaining arrangement to work,
such an employer often thought, the union needed ade-
quate funding. Because the “designation of a union as
exclusive representative carries with it great responsibili-
ties,” the Court reasoned, it inevitably also entails sub-
stantial costs. Id., at 221. “The tasks of negotiating and
administering a collective-bargaining agreement and
4 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
representing the interests of employees in settling dis-
putes and processing grievances are continuing and diffi-
cult ones.” Ibid. Those activities, the Court noted, require
the “expenditure of much time and money”—for example,
payment for the “services of lawyers, expert negotiators,
economists, and a research staff.” Ibid. And there is no
way to confine the union’s services to union members
alone (and thus to trim costs) because unions must by law
fairly represent all employees in a given bargaining unit—
union members and non-members alike. See ibid.
With all that in mind, the Court recognized why both a
government entity and its union bargaining partner would
gravitate toward an agency-fee clause. Those fees, the
Court reasoned, “distribute fairly the cost” of collective
bargaining “among those who benefit”—that is, all em-
ployees in the work unit. Id., at 222. And they “counter-
act[ ] the incentive that employees might otherwise have
to become ‘free riders.’ ” Ibid. In other words, an agency-
fee provision prevents employees from reaping all the
“benefits of union representation”—higher pay, a better
retirement plan, and so forth—while leaving it to others to
bear the costs. Ibid. To the Court, the upshot was clear: A
government entity could reasonably conclude that such a
clause was needed to maintain the kind of exclusive bar-
gaining arrangement that would facilitate peaceful and
stable labor relations.
But the Court acknowledged as well the “First Amend-
ment interests” of dissenting employees. Ibid. It recog-
nized that some workers might oppose positions the union
takes in collective bargaining, or even “unionism itself.”
Ibid. And still more, it understood that unions often
advance “political and ideological” views outside the
collective-bargaining context—as when they “contribute to
political candidates.” Id., at 232, 234. Employees might
well object to the use of their money to support such “ideo-
logical causes.” Id., at 235.
 Cite as: 585 U. S. ____ (2018) 5
KAGAN, J., dissenting
So the Court struck a balance, which has governed this
area ever since. On the one hand, employees could be
required to pay fees to support the union in “collective
bargaining, contract administration, and grievance ad-
justment.” Id., at 225–226. There, the Court held, the
“important government interests” in having a stably
funded bargaining partner justify “the impingement upon”
public employees’ expression. Id., at 225. But on the
other hand, employees could not be compelled to fund the
union’s political and ideological activities. Outside the
collective-bargaining sphere, the Court determined, an
employee’s First Amendment rights defeated any conflict-
ing government interest. See id., at 234–235.
II
Unlike the majority, I see nothing “questionable” about
Abood’s analysis. Ante, at 7 (quoting Harris, 573 U. S., at
___ (slip op., at 17)). The decision’s account of why some
government entities have a strong interest in agency fees
(now often called fair-share fees) is fundamentally sound.
And the balance Abood struck between public employers’
interests and public employees’ expression is right at
home in First Amendment doctrine.
A
Abood’s reasoning about governmental interests has
three connected parts. First, exclusive representation
arrangements benefit some government entities because
they can facilitate stable labor relations. In particular,
such arrangements eliminate the potential for inter-union
conflict and streamline the process of negotiating terms of
employment. See 431 U.S., at 220–221. Second, the
government may be unable to avail itself of those benefits
unless the single union has a secure source of funding.
The various tasks involved in representing employees cost
money; if the union doesn’t have enough, it can’t be an
6 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
effective employee representative and bargaining partner.
See id., at 221. And third, agency fees are often needed to
ensure such stable funding. That is because without those
fees, employees have every incentive to free ride on the
union dues paid by others. See id., at 222.
The majority does not take issue with the first point.
See ante, at 33 (It is “not disputed that the State may
require that a union serve as exclusive bargaining agent
for its employees” in order to advance the State’s “inter-
ests as an employer”). The majority claims that the sec-
ond point never appears in Abood, but is willing to assume
it for the sake of argument. See ante, at 31–32; but see
Abood, 431 U.S., at 221 (The tasks of an exclusive repre-
sentative “often entail expenditure of much time and
money”). So the majority stakes everything on the third
point—the conclusion that maintaining an effective sys-
tem of exclusive representation often entails agency fees.
Ante, at 12 (It “is simply not true” that exclusive represen-
tation and agency fees are “inextricably linked”); see ante,
at 14.
But basic economic theory shows why a government
would think that agency fees are necessary for exclusive
representation to work. What ties the two together, as
Abood recognized, is the likelihood of free-riding when fees
are absent. Remember that once a union achieves
exclusive-representation status, the law compels it to
fairly represent all workers in the bargaining unit, whether
or not they join or contribute to the union. See supra, at 4.
Because of that legal duty, the union cannot give special
advantages to its own members. And that in turn creates
a collective action problem of nightmarish proportions.
Everyone—not just those who oppose the union, but also
those who back it—has an economic incentive to withhold
dues; only altruism or loyalty—as against financial self-
interest—can explain why an employee would pay the
union for its services. And so emerged Abood’s rule allow-
Cite as: 585 U. S. ____ (2018) 7
KAGAN, J., dissenting
ing fair-share agreements: That rule ensured that a union
would receive sufficient funds, despite its legally imposed
disability, to effectively carry out its duties as exclusive
representative of the government’s employees.
The majority’s initial response to this reasoning is
simply to dismiss it. “[F]ree rider arguments,” the majority
pronounces, “are generally insufficient to overcome First
Amendment objections.” Ante, at 13 (quoting Knox, 567
U.S., at 311). “To hold otherwise,” it continues, “would
have startling consequences” because “[m]any private
groups speak out” in ways that will “benefit[ ] nonmem-
bers.” Ante, at 13. But that disregards the defining char-
acteristic of this free-rider argument—that unions, unlike
those many other private groups, must serve members and
non-members alike. Groups advocating for “senior citizens
or veterans” (to use the majority’s examples) have no legal
duty to provide benefits to all those individuals: They can
spur people to pay dues by conferring all kinds of special
advantages on their dues-paying members. Unions are—
by law—in a different position, as this Court has long
recognized. See, e.g., Machinists v. Street, 367 U.S. 740,
762 (1961). Justice Scalia, responding to the same argu-
ment as the majority’s, may have put the point best. In a
way that is true of no other private group, the “law re-
quires the union to carry” non-members—“indeed, requires
the union to go out of its way to benefit [them], even at the
expense of its other interests.” Lehnert v. Ferris Faculty
Assn., 500 U.S. 507, 556 (1991) (opinion concurring in
part and dissenting in part). That special feature was
what justified Abood: “Where the state imposes upon the
union a duty to deliver services, it may permit the union to
demand reimbursement for them.” 500 U.S., at 556.
The majority’s fallback argument purports to respond to
the distinctive position of unions, but still misses Abood’s
economic insight. Here, the majority delivers a four-page
exegesis on why unions will seek to serve as an exclusive
8 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
bargaining representative even “if they are not given
agency fees.” Ante, at 14; see ante, at 14–17. The gist of
the account is that “designation as the exclusive repre-
sentative confers many benefits,” which outweigh the costs
of providing services to non-members. Ante, at 15. But
that response avoids the key question, which is whether
unions without agency fees will be able to (not whether
they will want to) carry on as an effective exclusive repre-
sentative. And as to that question, the majority again
fails to reckon with how economically rational actors
behave—in public as well as private workplaces. Without
a fair-share agreement, the class of union non-members
spirals upward. Employees (including those who love the
union) realize that they can get the same benefits even if
they let their memberships 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. See Ichniowski & Zax, Right-to-Work
Laws, Free Riders, and Unionization in the Local Public
Sector, 9 J. Labor Economics 255, 257 (1991).1 And when
the vicious cycle finally ends, chances are that the union
will lack the resources to effectively perform the responsi-
——————
1 The majority relies on statistics from the federal workforce (where
agency fees are unlawful) to suggest that public employees do not act in
accord with economic logic. See ante, at 12. But first, many fewer
federal employees pay dues than have voted for a union to represent
them, indicating that free-riding in fact pervades the federal sector.
See, e.g., R. Kearney & P. Mareschal, Labor Relations in the Public
Sector 26 (5th ed. 2014). And second, that sector is not typical of other
public workforces. Bargaining in the federal sphere is limited; most
notably, it does not extend to wages and benefits. See Fort Stewart
Schools v. FLRA, 495 U.S. 641, 649 (1990). That means union operat-
ing expenses are lower than they are elsewhere. And the gap further
widens because the federal sector uses large, often national, bargaining
units that provide unions with economies of scale. See Brief for Inter-
national Brotherhood of Teamsters as Amicus Curiae 7. For those
reasons, the federal workforce is the wrong place to look for meaningful
empirical evidence on the issues here.
Cite as: 585 U. S. ____ (2018) 9
KAGAN, J., dissenting
bilities of an exclusive representative—or, in the worst
case, to perform them at all. The result is to frustrate the
interests of every government entity that thinks a strong
exclusive-representation scheme will promote stable labor
relations.
Of course, not all public employers will share that view.
Some would rather not bargain with an exclusive repre-
sentative. Others would prefer that representative to be
poorly funded—to serve more as a front than an effectual
bargaining partner. But as reflected in the number of fair-
share statutes and contracts across the Nation, see supra,
at 2, many government entities think that effective exclu-
sive representation makes for good labor relations—and
recognize, just as Abood did, that representation of that
kind often depends on agency fees. See, e.g., Harris, 573
U. S., at ___ (slip op., at 24) (KAGAN, J., dissenting) (de-
scribing why Illinois thought that bargaining with an
adequately funded exclusive representative of in-home
caregivers would enable the State to better serve its dis-
abled citizens). Abood respected that state interest; today’s
majority fails even to understand it. Little wonder that
the majority’s First Amendment analysis, which involves
assessing the government’s reasons for imposing agency
fees, also comes up short.
B
1
In many cases over many decades, this Court has ad-
dressed how the First Amendment applies when the gov-
ernment, acting not as sovereign but as employer, limits
its workers’ speech. Those decisions have granted sub-
stantial latitude to the government, in recognition of its
significant interests in managing its workforce so as to
best serve the public. Abood fit neatly with that caselaw,
in both reasoning and result. Indeed, its reversal today
creates a significant anomaly—an exception, applying to
10 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
union fees alone, from the usual rules governing public
employees’ speech.
“Time and again our cases have recognized that the
Government has a much freer hand” in dealing with its
employees than with “citizens at large.” NASA v. Nelson,
562 U.S. 134, 148 (2011) (internal quotation marks omit-
ted). The government, we have stated, needs to run “as
effectively and efficiently as possible.” Engquist v. Oregon
Dept. of Agriculture, 553 U.S. 591, 598 (2008) (internal
quotation marks omitted). That means it must be able,
much as a private employer is, to manage its workforce as
it thinks fit. A public employee thus must submit to “cer-
tain limitations on his or her freedom.” Garcetti v. Ce-
ballos, 547 U.S. 410, 418 (2006). Government workers, of
course, do not wholly “lose their constitutional rights when
they accept their positions.” Engquist, 553 U.S., at 600.
But under our precedent, their rights often yield when
weighed “against the realities of the employment context.”
Ibid. If it were otherwise—if every employment decision
were to “bec[o]me a constitutional matter”—“the Govern-
ment could not function.” NASA, 562 U.S., at 149 (inter-
nal quotation marks omitted).
Those principles apply with full force when public
employees’ expressive rights are at issue. As we have ex-
plained: “Government employers, like private employers,
need a significant degree of control over their employees’
words” in order to “efficient[ly] provi[de] public services.”
Garcetti, 547 U.S., at 418. Again, significant control does
not mean absolute authority. In particular, the Court has
guarded against government efforts to “leverage the em-
ployment relationship” to shut down its employees’ speech
as private citizens. Id., at 419. But when the government
imposes speech restrictions relating to workplace opera-
tions, of the kind a private employer also would, the Court
reliably upholds them. See, e.g., id., at 426; Connick v.
Myers, 461 U.S. 138, 154 (1983).
Cite as: 585 U. S. ____ (2018) 11
KAGAN, J., dissenting
In striking the proper balance between employee speech
rights and managerial interests, the Court has long ap-
plied a test originating in Pickering v. Board of Ed. of
Township High School Dist. 205, Will Cty., 391 U.S. 563
(1968). That case arose out of an individual employment
action: the firing of a public school teacher. As we later
described the Pickering inquiry, the Court first asks
whether the employee “spoke as a citizen on a matter of
public concern.” Garcetti, 547 U.S., at 418. If she did
not—but rather spoke as an employee on a workplace
matter—she has no “possibility of a First Amendment
claim”: A public employer can curtail her speech just as a
private one could. Ibid. But if she did speak as a citizen
on a public matter, the public employer must demonstrate
“an adequate justification for treating the employee differ-
ently from any other member of the general public.” Ibid.
The government, that is, needs to show that legitimate
workplace interests lay behind the speech regulation.
Abood coheres with that framework. The point here is
not, as the majority suggests, that Abood is an overt, one-
to-one “application of Pickering.” Ante, at 26. It is not.
Abood related to a municipality’s labor policy, and so the
Court looked to prior cases about unions, not to Pickering’s
analysis of an employee’s dismissal. (And truth be told,
Pickering was not at that time much to look at: What the
Court now thinks of as the two-step Pickering test, as the
majority’s own citations show, really emerged from Garcetti
and Connick—two cases post-dating Abood. See ante, at
22.)2 But Abood and Pickering raised variants of the same
basic issue: the extent of the government’s authority to
——————
2 For those reasons, it is not surprising that the “categorization
schemes” in Abood and Pickering are not precisely coterminous. Ante,
at 25. The two cases are fraternal rather than identical twins—both
standing for the proposition that the government receives great defer-
ence when it regulates speech as an employer rather than as a sover-
eign. See infra this page and 12–13.
12 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
make employment decisions affecting expression. And in
both, the Court struck the same basic balance, enabling
the government to curb speech when—but only when—the
regulation was designed to protect its managerial inter-
ests. Consider the parallels:
Like Pickering, Abood drew the constitutional line by
analyzing the connection between the government’s man-
agerial interests and different kinds of expression. The
Court first discussed the use of agency fees to subsidize
the speech involved in “collective bargaining, contract
administration, and grievance adjustment.” 431 U.S., at
225–226. It understood that expression (really, who would
not?) as intimately tied to the workplace and employment
relationship. The speech was about “working conditions,
pay, discipline, promotions, leave, vacations, and termina-
tions,” Borough of Duryea v. Guarnieri, 564 U.S. 379, 391
(2011); the speech occurred (almost always) in the work-
place; and the speech was directed (at least mainly) to the
employer. As noted earlier, Abood described the manage-
rial interests of employers in channeling all that speech
through a single union. See 431 U.S., at 220–222, 224–
226; supra, at 3. And so Abood allowed the government to
mandate fees for collective bargaining—just as Pickering
permits the government to regulate employees’ speech on
similar workplace matters. But still, Abood realized that
compulsion could go too far. The Court barred the use of
fees for union speech supporting political candidates or
“ideological causes.” 431 U.S., at 235. That speech, it
understood, was “unrelated to [the union’s] duties as
exclusive bargaining representative,” but instead was
directed at the broader public sphere. Id., at 234. And for
that reason, the Court saw no legitimate managerial
interests in compelling its subsidization. The employees’
First Amendment claims would thus prevail—as, again,
they would have under Pickering.
Abood thus dovetailed with the Court’s usual attitude in
Cite as: 585 U. S. ____ (2018) 13
KAGAN, J., dissenting
First Amendment cases toward the regulation of public
employees’ speech. That attitude is one of respect—even
solicitude—for the government’s prerogatives as an em-
ployer. So long as the government is acting as an employ-
er—rather than exploiting the employment relationship
for other ends—it has a wide berth, comparable to that of
a private employer. And when the regulated expression
concerns the terms and conditions of employment—the
very stuff of the employment relationship—the govern-
ment really cannot lose. There, managerial interests are
obvious and strong. And so government employees are . . .
just employees, even though they work for the govern-
ment. Except that today the government does lose, in a
first for the law. Now, the government can constitutionally
adopt all policies regulating core workplace speech in
pursuit of managerial goals—save this single one.
2
The majority claims it is not making a special and un-
justified exception. It offers two main reasons for declin-
ing to apply here our usual deferential approach, as exem-
plified in Pickering, to the regulation of public employee
speech. First, the majority says, this case involves a
“blanket” policy rather than an individualized employment
decision, so Pickering is a “painful fit.” Ante, at 23. Sec-
ond, the majority asserts, the regulation here involves
compelling rather than restricting speech, so the pain gets
sharper still. See ante, at 24–25. And finally, the majority
claims that even under the solicitous Pickering standard,
the government should lose, because the speech here
involves a matter of public concern and the government’s
managerial interests do not justify its regulation. See
ante, at 27–31. The majority goes wrong at every turn.
First, this Court has applied the same basic approach
whether a public employee challenges a general policy or
an individualized decision. Even the majority must con-
14 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
cede that “we have sometimes looked to Pickering in con-
sidering general rules that affect broad categories of em-
ployees.” Ante, at 23. In fact, the majority cannot come up
with any case in which we have not done so. All it can
muster is one case in which while applying the Pickering
test to a broad rule—barring any federal employee from
accepting any payment for any speech or article on any
topic—the Court noted that the policy’s breadth would
count against the government at the test’s second step.
See United States v. Treasury Employees, 513 U.S. 454
(1995). Which is completely predictable. The inquiry at
that stage, after all, is whether the government has an
employment-related interest in going however far it has
gone—and in Treasury Employees, the government had
indeed gone far. (The Court ultimately struck down the
rule because it applied to speech in which the government
had no identifiable managerial interest. See id., at 470,
477.) Nothing in Treasury Employees suggests that the
Court defers only to ad hoc actions, and not to general
rules, about public employee speech. That would be a
perverse regime, given the greater regularity of rulemak-
ing and the lesser danger of its abuse. So I would wager a
small fortune that the next time a general rule governing
public employee speech comes before us, we will dust off
Pickering.
Second, the majority’s distinction between compelling
and restricting speech also lacks force. The majority
posits that compelling speech always works a greater
injury, and so always requires a greater justification. See
ante, at 8. But the only case the majority cites for that
reading of our precedent is possibly (thankfully) the most
exceptional in our First Amendment annals: It involved
the state forcing children to swear an oath contrary to
their religious beliefs. See ibid. (quoting West Virginia
Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)). Regulations
challenged as compelling expression do not usually look
Cite as: 585 U. S. ____ (2018) 15
KAGAN, J., dissenting
anything like that—and for that reason, the standard
First Amendment rule is that the “difference between
compelled speech and compelled silence” is “without con-
stitutional significance.” Riley v. National Federation of
Blind of N. C., Inc., 487 U.S. 781, 796 (1988); see Wooley
v. Maynard, 430 U.S. 705, 714 (1977) (referring to “[t]he
right to speak and the right to refrain from speaking” as
“complementary components” of the First Amendment).
And if anything, the First Amendment scales tip the oppo-
site way when (as here) the government is not compelling
actual speech, but instead compelling a subsidy that oth-
ers will use for expression. See Brief for Eugene Volokh
et al. as Amici Curiae 4–5 (offering many examples to
show that the First Amendment “simply do[es] not guar-
antee that one’s hard-earned dollars will never be spent on
speech one disapproves of ”).3 So when a government
mandates a speech subsidy from a public employee—here,
we might think of it as levying a tax to support collective
bargaining—it should get at least as much deference as
when it restricts the employee’s speech. As this case
shows, the former may advance a managerial interest as
well as the latter—in which case the government’s “freer
hand” in dealing with its employees should apply with
equal (if not greater) force. NASA, 562 U.S., at 148.
Third and finally, the majority errs in thinking that
under the usual deferential approach, the government
should lose this case. The majority mainly argues here
——————
3 That’s why this Court has blessed the constitutionality of compelled
speech subsidies in a variety of cases beyond Abood, involving a variety
of contexts beyond labor relations. The list includes mandatory fees
imposed on state bar members (for professional expression); university
students (for campus events); and fruit processors (for generic advertis-
ing). See Keller v. State Bar of Cal., 496 U.S. 1, 14 (1990); Board of
Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 233
(2000); Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 474
(1997); see also infra, at 20.
16 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
that, at Pickering’s first step, “union speech in collective
bargaining” is a “matter of great public concern” because it
“affect[s] how public money is spent” and addresses “other
important matters” like teacher merit pay or tenure. Ante,
at 27, 29 (internal quotation marks omitted). But to start,
the majority misunderstands the threshold inquiry set out
in Pickering and later cases. The question is not, as the
majority seems to think, whether the public is, or should
be, interested in a government employee’s speech. In-
stead, the question is whether that speech is about and
directed to the workplace—as contrasted with the broader
public square. Treasury Employees offers the Court’s
fullest explanation. The Court held there that the gov-
ernment’s policy prevented employees from speaking as
“citizen[s]” on “matters of public concern.” 513 U.S., at
466 (quoting Pickering, 391 U.S., at 568). Why? Because
the speeches and articles “were addressed to a public
audience, were made outside the workplace, and involved
content largely unrelated to their Government employ-
ment.” 513 U.S., at 466; see id., at 465, 470 (repeating
that analysis twice more). The Court could not have cared
less whether the speech at issue was “important.” Ante, at
29. It instead asked whether the speech was truly of the
workplace—addressed to it, made in it, and (most of all)
about it.
Consistent with that focus, speech about the terms and
conditions of employment—the essential stuff of collective
bargaining—has never survived Pickering’s first step.
This Court has rejected all attempts by employees to make
a “federal constitutional issue” out of basic “employment
matters, including working conditions, pay, discipline,
promotions, leave, vacations, and terminations.” Guarnieri,
564 U.S., at 391; see Board of Comm’rs, Wabaunsee
Cty. v. Umbehr, 518 U.S. 668, 675 (1996) (stating that
public employees’ “speech on merely private employment
matters is unprotected”). For that reason, even the Jus-
Cite as: 585 U. S. ____ (2018) 17
KAGAN, J., dissenting
tices who originally objected to Abood conceded that the
use of agency fees for bargaining on “economic issues” like
“salaries and pension benefits” would not raise significant
First Amendment questions. 431 U.S., at 263, n. 16
(Powell, J., concurring in judgment). Of course, most of
those issues have budgetary consequences: They “affect[ ]
how public money is spent.” Ante, at 29. And some raise
important non-budgetary disputes; teacher merit pay is a
good example, see ante, at 30. But arguing about the
terms of employment is still arguing about the terms of
employment: The workplace remains both the context and
the subject matter of the expression. If all that speech
really counted as “of public concern,” as the majority
suggests, the mass of public employees’ complaints (about
pay and benefits and workplace policy and such) would
become “federal constitutional issue[s].” Guarnieri, 564
U.S., at 391. And contrary to decades’ worth of precedent,
government employers would then have far less control
over their workforces than private employers do. See
supra, at 9–11.
Consider an analogy, not involving union fees: Suppose
a government entity disciplines a group of (non-unionized)
employees for agitating for a better health plan at various
inopportune times and places. The better health plan will
of course drive up public spending; so according to the
majority’s analysis, the employees’ speech satisfies Picker-
ing’s “public concern” test. Or similarly, suppose a public
employer penalizes a group of (non-unionized) teachers
who protest merit pay in the school cafeteria. Once again,
the majority’s logic runs, the speech is of “public concern,”
so the employees have a plausible First Amendment claim.
(And indeed, the majority appears to concede as much, by
asserting that the results in these hypotheticals should
turn on various “factual detail[s]” relevant to the interest
balancing that occurs at the Pickering test’s second step.
Ante, at 32, n. 23.) But in fact, this Court has always
18 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
understood such cases to end at Pickering’s first step: If an
employee’s speech is about, in, and directed to the work-
place, she has no “possibility of a First Amendment claim.”
Garcetti, 547 U.S., at 418; see supra, at 11. So take your
pick. Either the majority is exposing government entities
across the country to increased First Amendment litiga-
tion and liability—and thus preventing them from regulat-
ing their workforces as private employers could. Or else,
when actual cases of this kind come around, we will dis-
cover that today’s majority has crafted a “unions only”
carve-out to our employee-speech law.
What’s more, the government should prevail even if the
speech involved in collective bargaining satisfies Picker-
ing’s first part. Recall that the next question is whether
the government has shown “an adequate justification for
treating the employee differently from any other member
of the general public.” Garcetti, 547 U.S., at 418; supra,
at 11. That inquiry is itself famously respectful of gov-
ernment interests. This Court has reversed the govern-
ment only when it has tried to “leverage the employment
relationship” to achieve an outcome unrelated to the
workplace’s “effective functioning.” Garcetti, 547 U.S., at
419; Rankin v. McPherson, 483 U.S. 378, 388 (1987).
Nothing like that is true here. As Abood described, many
government entities have found agency fees the best way
to ensure a stable and productive relationship with an
exclusive bargaining agent. See 431 U.S., at 220–221,
224–226; supra, at 3–4. And here, Illinois and many
governmental amici have explained again how agency fees
advance their workplace goals. See Brief for State Re-
spondents 12, 36; Brief for Governor Tom Wolf et al. as
Amici Curiae 21–33. In no other employee-speech case
has this Court dismissed such work-related interests, as
the majority does here. See supra, at 6–9 (discussing the
majority’s refusal to engage with the logic of the State’s
position). Time and again, the Court has instead respected
Cite as: 585 U. S. ____ (2018) 19
KAGAN, J., dissenting
and acceded to those interests—just as Abood did.
The key point about Abood is that it fit naturally with
this Court’s consistent teaching about the permissibility of
regulating public employees’ speech. The Court allows a
government entity to regulate that expression in aid of
managing its workforce to effectively provide public ser-
vices. That is just what a government aims to do when it
enforces a fair-share agreement. And so, the key point
about today’s decision is that it creates an unjustified hole
in the law, applicable to union fees alone. This case is sui
generis among those addressing public employee speech—
and will almost surely remain so.
III
But the worse part of today’s opinion is where the ma-
jority subverts all known principles of stare decisis. The
majority makes plain, in the first 33 pages of its decision,
that it believes Abood was wrong.4 But even if that were
true (which it is not), it is not enough. “Respecting stare
decisis means sticking to some wrong decisions.” Kimble
v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015)
(slip op., at 7). Any departure from settled precedent (so
the Court has often stated) demands a “special justifica-
tion—over and above the belief that the precedent was
wrongly decided.” Id., at ___ (slip op., at 8) (internal quo-
tation marks omitted); see, e.g., Arizona v. Rumsey, 467
U.S. 203, 212 (1984). And the majority does not have
anything close. To the contrary: all that is “special” in this
case—especially the massive reliance interests at stake—
demands retaining Abood, beyond even the normal
precedent.
Consider first why these principles about precedent are
so important. Stare decisis—“the idea that today’s Court
——————
4 And then, after ostensibly turning to stare decisis, the majority
spends another four pages insisting that Abood was “not well rea-
soned,” which is just more of the same. Ante, at 38; see ante, at 35–38.
20 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
should stand by yesterday’s decisions”—is “a foundation
stone of the rule of law.” Kimble, 576 U. S., at ___ (slip
op., at 7) (quoting Michigan v. Bay Mills Indian Commu-
nity, 572 U. S. ___, ___ (2014) (slip op., at 15)). It “pro-
motes the evenhanded, predictable, and consistent devel-
opment” of legal doctrine. Payne v. Tennessee, 501 U.S.
808, 827 (1991). It fosters respect for and reliance on
judicial decisions. See ibid. And it “contributes to the
actual and perceived integrity of the judicial process,”
ibid., by ensuring that decisions are “founded in the law
rather than in the proclivities of individuals,” Vasquez v.
Hillery, 474 U.S. 254, 265 (1986).
And Abood is not just any precedent: It is embedded in
the law (not to mention, as I’ll later address, in the world)
in a way not many decisions are. Over four decades, this
Court has cited Abood favorably many times, and has
affirmed and applied its central distinction between the
costs of collective bargaining (which the government can
charge to all employees) and those of political activities
(which it cannot). See, e.g., Locke v. Karass, 555 U.S. 207,
213–214 (2009); Lehnert, 500 U.S., at 519; Teachers v.
Hudson, 475 U.S. 292, 301–302 (1986); Ellis v. Railway
Clerks, 466 U.S. 435, 455–457 (1984). Reviewing those
decisions not a decade ago, this Court—unanimously—
called the Abood rule “a general First Amendment princi-
ple.” Locke, 555 U.S., at 213. And indeed, the Court has
relied on that rule when deciding cases involving com-
pelled speech subsidies outside the labor sphere—cases
today’s decision does not question. See, e.g., Keller v. State
Bar of Cal., 496 U.S. 1, 9–17 (1990) (state bar fees); Board
of Regents of Univ. of Wis. System v. Southworth, 529 U.S.
217, 230–232 (2000) (public university student fees);
Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S.
457, 471–473 (1997) (commercial advertising assess-
ments); see also n. 3, supra.
Ignoring our repeated validation of Abood, the majority
Cite as: 585 U. S. ____ (2018) 21
KAGAN, J., dissenting
claims it has become “an outlier among our First Amend-
ment cases.” Ante, at 42. That claim fails most spectacu-
larly for reasons already discussed: Abood coheres with
the Pickering approach to reviewing regulation of public
employees’ speech. See supra, at 11–13. Needing to
stretch further, the majority suggests that Abood conflicts
with “our political patronage decisions.” Ante, at 44. But
in fact those decisions strike a balance much like Abood’s.
On the one hand, the Court has enabled governments to
compel policymakers to support a political party, because
that requirement (like fees for collective bargaining) can
reasonably be thought to advance the interest in work-
place effectiveness. See Elrod v. Burns, 427 U.S. 347,
366–367 (1976); Branti v. Finkel, 445 U.S. 507, 517
(1980). On the other hand, the Court has barred govern-
ments from extending that rule to non-policymaking em-
ployees because that application (like fees for political
campaigns) can’t be thought to promote that interest, see
Elrod, 427 U.S., at 366; the government is instead trying
to “leverage the employment relationship” to achieve other
goals, Garcetti, 547 U.S., at 419. So all that the majority
has left is Knox and Harris. See ante, at 43. Dicta in
those recent decisions indeed began the assault on Abood
that has culminated today. But neither actually ad-
dressed the extent to which a public employer may regu-
late its own employees’ speech. Relying on them is boot-
strapping—and mocking stare decisis. Don’t like a
decision? Just throw some gratuitous criticisms into a
couple of opinions and a few years later point to them as
“special justifications.”
The majority is likewise wrong to invoke “workability”
as a reason for overruling Abood. Ante, at 38. Does Abood
require drawing a line? Yes, between a union’s collective-
bargaining activities and its political activities. Is that
line perfectly and pristinely “precis[e],” as the majority
demands? Ante, at 38. Well, not quite that—but as exer-
22 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
cises of constitutional linedrawing go, Abood stands well
above average. In the 40 years since Abood, this Court
has had to resolve only a handful of cases raising ques-
tions about the distinction. To my knowledge, the circuit
courts are not divided on any classification issue; neither
are they issuing distress signals of the kind that some-
times prompt the Court to reverse a decision. See, e.g.,
Johnson v. United States, 576 U. S. ___ (2015) (overruling
precedent because of frequent splits and mass confusion).
And that tranquility is unsurprising: There may be some
gray areas (there always are), but in the mine run of
cases, everyone knows the difference between politicking
and collective bargaining. The majority cites some disa-
greement in two of the classification cases this Court
decided—as if non-unanimity among Justices were some-
thing startling. And it notes that a dissenter in one of
those cases called the Court’s approach “malleable” and
“not principled,” ante, at 39—as though those weren’t
stock terms in dissenting vocabulary. See, e.g., Murr v.
Wisconsin, 582 U. S. ___, ___ (2017) (ROBERTS, C. J., dis-
senting) (slip op., at 2); Dietz v. Bouldin, 579 U. S. ___, ___
(2016) (THOMAS, J., dissenting) (slip op., at 1); Alabama
Legislative Black Caucus v. Alabama, 575 U. S. ___, ___
(2015) (slip op., at 13) (SCALIA, J., dissenting). As I wrote
in Harris a few Terms ago: “If the kind of hand-wringing
about blurry lines that the majority offers were enough to
justify breaking with precedent, we might have to discard
whole volumes of the U. S. Reports.” 573 U. S., at ___ (slip
op., at 15).
And in any event, one stare decisis factor—reliance—
dominates all others here and demands keeping Abood.
Stare decisis, this Court has held, “has added force when
the legislature, in the public sphere, and citizens, in the
private realm, have acted in reliance on a previous deci-
sion.” Hilton v. South Carolina Public Railways Comm’n,
502 U.S. 197, 202 (1991). That is because overruling a
Cite as: 585 U. S. ____ (2018) 23
KAGAN, J., dissenting
decision would then “require an extensive legislative
response” or “dislodge settled rights and expectations.”
Ibid. Both will happen here: The Court today wreaks
havoc on entrenched legislative and contractual
arrangements.
Over 20 States have by now enacted statutes authoriz-
ing fair-share provisions. To be precise, 22 States, the
District of Columbia, and Puerto Rico—plus another two
States for police and firefighter unions. Many of those
States have multiple statutory provisions, with variations
for different categories of public employees. See, e.g., Brief
for State of California as Amicus Curiae 24–25. Every one
of them will now need to come up with new ways—
elaborated in new statutes—to structure relations be-
tween government employers and their workers. The
majority responds, in a footnote no less, that this is of no
proper concern to the Court. See ante, at 47, n. 27. But in
fact, we have weighed heavily against “abandon[ing] our
settled jurisprudence” that “[s]tate legislatures have relied
upon” it and would have to “reexamine [and amend] their
statutes” if it were overruled. Allied-Signal, Inc. v. Direc-
tor, Div. of Taxation, 504 U.S. 768, 785 (1992); Hilton, 502
U.S., at 203.
Still more, thousands of current contracts covering
millions of workers provide for agency fees. Usually, this
Court recognizes that “[c]onsiderations in favor of stare
decisis are at their acme in cases involving property and
contract rights.” Payne, 501 U.S., at 828. Not today. The
majority undoes bargains reached all over the country.5 It
prevents the parties from fulfilling other commitments
they have made based on those agreements. It forces the
——————
5 Indeed, some agency-fee provisions, if canceled, could bring down
entire contracts because they lack severability clauses. See ante, at 46
(noting that unions could have negotiated for that result); Brief for
Governor Tom Wolf et al. as Amici Curiae 11.
24 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
parties—immediately—to renegotiate once-settled terms
and create new tradeoffs. It does so knowing that many of
the parties will have to revise (or redo) multiple contracts
simultaneously. (New York City, for example, has agreed
to agency fees in 144 contracts with 97 public-sector un-
ions. See Brief for New York City Municipal Labor Com-
mittee as Amicus Curiae 4.) It does so knowing that those
renegotiations will occur in an environment of legal uncer-
tainty, as state governments scramble to enact new labor
legislation. See supra, at 23. It does so with no real clue
of what will happen next—of how its action will alter
public-sector labor relations. It does so even though the
government services affected—policing, firefighting, teach-
ing, transportation, sanitation (and more)—affect the
quality of life of tens of millions of Americans.
The majority asserts that no one should care much
because the canceled agreements are “of rather short
duration” and would “expire on their own in a few years’
time.” Ante, at 45, 46. But to begin with, that response
ignores the substantial time and effort that state legisla-
tures will have to devote to revamping their statutory
schemes. See supra, at 23. And anyway, it misunder-
stands the nature of contract negotiations when the par-
ties have a continuing relationship. The parties, in renew-
ing an old collective-bargaining agreement, don’t start on
an empty page. Instead, various “long-settled” terms—
like fair-share provisions—are taken as a given. Brief for
Governor Tom Wolf et al. 11; see Brief for New York City
Sergeants Benevolent Assn. as Amicus Curiae 18. So the
majority’s ruling does more than advance by a few years a
future renegotiation (though even that would be signifi-
cant). In most cases, it commands new bargaining over
how to replace a term that the parties never expected to
change. And not just new bargaining; given the interests
at stake, complicated and possibly contentious bargaining
Cite as: 585 U. S. ____ (2018) 25
KAGAN, J., dissenting
as well. See Brief for Governor Tom Wolf et al. 11.6
The majority, though, offers another reason for not
worrying about reliance: The parties, it says, “have been
on notice for years regarding this Court’s misgivings about
Abood.” Ante, at 45. Here, the majority proudly lays
claim to its 6-year crusade to ban agency fees. In Knox,
the majority relates, it described Abood as an “anomaly.”
Ante, at 45 (quoting 567 U.S., at 311). Then, in Harris, it
“cataloged Abood’s many weaknesses.” Ante, at 45.
Finally, in Friedrichs, “we granted a petition for certiorari
asking us to” reverse Abood, but found ourselves equally
divided. Ante, at 45. “During this period of time,” the
majority concludes, public-sector unions “must have un-
derstood that the constitutionality of [an agency-fee]
provision was uncertain.” Ibid. And so, says the majority,
they should have structured their affairs accordingly.
But that argument reflects a radically wrong under-
standing of how stare decisis operates. Justice Scalia once
confronted a similar argument for “disregard[ing] reliance
interests” and showed how antithetical it was to rule-of-
law principles. Quill Corp. v. North Dakota, 504 U.S. 298,
320 (1992) (concurring opinion). He noted first what we
always tell lower courts: “If a precedent of this Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, [they] should
follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.” Id.,
——————
6 In a single, cryptic sentence, the majority also claims that argu-
ments about reliance “based on [Abood’s] clarity are misplaced” because
Abood did not provide a “clear or easily applicable standard” to sepa-
rate fees for collective bargaining from those for political activities.
Ante, at 45. But to begin, the standard for separating those activities
was clear and workable, as I have already shown. See supra, at 21–22.
And in any event, the reliance Abood engendered was based not on the
clarity of that line, but on the clarity of its holding that governments
and unions could generally agree to fair-share arrangements.
26 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
at 321 (quoting Rodriguez de Quijas v. Shearson/
American Express, Inc., 490 U.S. 477, 484 (1989);
some alterations omitted). That instruction, Justice Scalia
explained, was “incompatible” with an expectation that
“private parties anticipate our overrulings.” 406 U.S., at
320. He concluded: “[R]eliance upon a square, unaban-
doned holding of the Supreme Court is always justifiable
reliance.” Ibid. Abood’s holding was square. It was una-
bandoned before today. It was, in other words, the law—
however much some were working overtime to make it
not. Parties, both unions and governments, were thus
justified in relying on it. And they did rely, to an extent
rare among our decisions. To dismiss the overthrowing of
their settled expectations as entailing no more than some
“adjustments” and “unpleasant transition costs,” ante, at
47, is to trivialize stare decisis.
IV
There is no sugarcoating today’s opinion. The majority
overthrows a decision entrenched in this Nation’s law—
and in its economic life—for over 40 years. As a result, it
prevents the American people, acting through their state
and local officials, from making important choices about
workplace governance. And it does so by weaponizing the
First Amendment, in a way that unleashes judges, now
and in the future, to intervene in economic and regulatory
policy.
Departures from stare decisis are supposed to be “excep-
tional action[s]” demanding “special justification,” Rum-
sey, 467 U.S., at 212—but the majority offers nothing like
that here. In contrast to the vigor of its attack on Abood,
the majority’s discussion of stare decisis barely limps to
the finish line. And no wonder: The standard factors this
Court considers when deciding to overrule a decision all
cut one way. Abood’s legal underpinnings have not eroded
over time: Abood is now, as it was when issued, consistent
Cite as: 585 U. S. ____ (2018) 27
KAGAN, J., dissenting
with this Court’s First Amendment law. Abood provided a
workable standard for courts to apply. And Abood has
generated enormous reliance interests. The majority has
overruled Abood for no exceptional or special reason, but
because it never liked the decision. It has overruled Abood
because it wanted to.
Because, that is, it wanted to pick the winning side in
what should be—and until now, has been—an energetic
policy debate. Some state and local governments (and the
constituents they serve) think that stable unions promote
healthy labor relations and thereby improve the provision
of services to the public. Other state and local govern-
ments (and their constituents) think, to the contrary, that
strong unions impose excessive costs and impair those
services. Americans have debated the pros and cons for
many decades—in large part, by deciding whether to use
fair-share arrangements. Yesterday, 22 States were on
one side, 28 on the other (ignoring a couple of in-
betweeners). Today, that healthy—that democratic—
debate ends. The majority has adjudged who should
prevail. Indeed, the majority is bursting with pride over
what it has accomplished: Now those 22 States, it crows,
“can follow the model of the federal government and 28
other States.” Ante, at 47, n. 27.
And maybe most alarming, the majority has chosen the
winners by turning the First Amendment into a sword,
and using it against workaday economic and regulatory
policy. Today is not the first time the Court has wielded
the First Amendment in such an aggressive way. See, e.g.,
National Institute of Family and Life Advocates v. Becerra,
ante, p. ___ (invalidating a law requiring medical and
counseling facilities to provide relevant information to
users); Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
(striking down a law that restricted pharmacies from
selling various data). And it threatens not to be the last.
Speech is everywhere—a part of every human activity
28 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
KAGAN, J., dissenting
(employment, health care, securities trading, you name it).
For that reason, almost all economic and regulatory policy
affects or touches speech. So the majority’s road runs
long. And at every stop are black-robed rulers overriding
citizens’ choices. The First Amendment was meant for
better things. It was meant not to undermine but to pro-
tect democratic governance—including over the role of
public-sector unions.