Saturday, June 30, 2018

Janus v. AFSCME Council 31: Brief Thoughts and AAUP Statement

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the United States Supreme Court extended the right to a union shop to public service employees. They reasoned effectively that public employees ought not to be denied a right accorded to private sector employees. Certain elements of the political sector have been quite cross ever since. On June 27, the Supreme Court issued its decision in Janus v. AFSCME Council 31 (see the court's opinion).

One can view the issue in at least two broad ways; the choice of which to privilege depending in part on one's politics, and political agendas.  In one perspective, the case reduces itself to the protection of formal political rights among individuals, and extends that protection to the context of economic relations between labor and capital and among labor collectives and dissenting individuals. In another perspective, the case reduces itself to the reduction of the collective power of labor (compared certainly to the power of collectivity in capital) within firms, and shifts the distribution of economic power within labor and between labor and capital in the operation of firms. That distribution of power, especially in the context of shifts of power allocation between aggregations of capital and aggregations of labor have long marked this Republic. "Indeed, under common law, “collective bargaining was unlawful,” Teamsters v. Terry, 494 U. S. 558, 565–566 (1990)" Janus, n. 7 majority opinion)). 

Of course, the mediation of both views would have been important.  But this saga might better be understood in legal cultural terms as a generation old act of revenge by one reconstituted side of the American economic-cultural-political spectrum against another.  It was a long road from Abood to Janus. And it was a war littered with interest, advantage, and intransigence on all sides. But this is politics ("Today, the Court succeeds in its 6-year campaign to reverse Abood." Janus, Kagan, dissenting) p. 2). That is is an excellent marker of the benefits and challenges of judicial politics well into an age in which the U.S. has adjusted itself to the reconstitution of the judiciary as perhaps its most political branch, remains to be seen. For lawyers, beyond the constitutional points, the discussion of stare decisis would be worth some thought. These are the rules that sometimes liberalize or constrain the political opportunities offered through litigation, even they they might, in the process, undermine (or transform) the once conventional judicial character of the institution (assuming that was itself never a myth, though if so a useful one for national stability).

Indeed, in line with the great political cases, well funded by national (and increasingly international) actors using the courts as a more efficient medium for political reconstitution (as opposed to the cumbersome and expensive legislature, the complex bureaucracy, or the executive branch that is usually too disorganized to be effective consistently), this case can be understood as another in a long line of instances in which powerful actors focus their competition in the courts. In this case, unremarkably, Janus was represented in court by the Illinois Policy Institute’s litigation partner, the Liberty Justice Center, as well as the National Right to Work Legal Defense Foundation.

The decision has significant effects, though their character and direction remains to be seen, for the university. This might be interesting, for example, with respect to application to publicly assisted universities. And the fight over the rights of labor and capital to aggregatinbg power remains an unfinished story.

This post includes the statement of the AAUP  

AAUP Statement On Supreme Court’s Ruling In Janus v. AFSCME Council 31

Washington, D.C. – In response to the US Supreme Court’s 5-4 verdict in Janus v. AFSCME Council 31, the American Association of University Professors issued this statement from its president, Rudy Fichtenbaum:
Today, a narrow majority of Supreme Court justices sided with extremely wealthy interests in the long-awaited decision in Janus v. AFSCME Council 31. Although this decision was not unexpected, we are disappointed by the opinion of the majority. At issue was whether non-union members, who share in the wages, benefits, and protections that have been negotiated into a collectively bargained contract, may be required to pay their fair share for the cost. The court ruled that they may not.

You can find out about the background of this case at

On the surface, this case may seem like a technical one that doesn’t affect many faculty. But Janus and similar court cases and legislative initiatives are part of a broad assault on public institutions and the common good. They seek to roll back protections for working people, lessen public support for civic building blocks such as education, and diminish the ability of unions to have a positive impact.

AAUP members and chapters on campuses across the country advocate for academic freedom, professional values and standards, and the faculty voice in higher education. They help ensure that our students have challenging learning environments and strengthen our institutions of higher education. Those AAUP chapters that have been formally recognized as unions take this advocacy a step farther, by negotiating legally enforceable contracts that incorporate AAUP principles. This ruling makes their job more difficult.

But make no mistake, our fight as AAUP members to have a positive impact on our colleges and universities, to strengthen public higher education, and to protect academic freedom is not over. Together, we will continue to fight for our students, our campuses, and our communities. We will continue to say, loudly and clearly, that strong universities and well-educated citizens are essential to our survival as a democracy. That’s why our work as educators, union members, and advocates has never been more important than it is now.
Publication Date: Wednesday, June 27, 2018.

The AAUP Has also provided additional materials that support its position:
Additional reading and resources
Exclusive: how rightwing groups wield secret 'toolkit' to plot against US unions. From The Guardian. 

The racist roots of the Janus case. From the Clarion, the newspaper of the Professional Staff Congress, CUNY. 

West Virginia Teachers Are Showing How Unions Can Win Power Even If They Lose Janus. From In These Times.

Janus v. AFSCME is a threat to all workers. In the Orange County Register.

These Cities Aren’t Waiting for the Supreme Court to Decide Whether or Not to Gut Unions: They’re finding ways to support organizing now. From the Nation.

Unions Helped Integrate America. The Supreme Court Could End That This Year. From the Daily Beast.

The Recent Teacher Strikes Are about More than Just Teachers. From Pacific Standard.

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