U.S. Supreme Court

By Austin Berg  February 2018

Mark Janus learned about public service from a young age, growing up as a Boy Scout in Springfield. He eventually became an Eagle Scout. And he’s passed along his knowledge to young men and women from the state’s capital while leading scouting trips to Florida. But Janus’ public service doesn’t end with merit badges and camping trips. It extends to his career. And it’s because of this that he now finds himself at the center of a historic Supreme Court case with implications for millions of workers like him. The court will hear oral arguments in Janus v. AFSCME on Monday, Feb. 26.

Here’s what that case is all about, and why it matters. In his job at the Illinois Department of Healthcare and Family Services, Janus works to help children caught up in their parents’ divorce. To keep that job, he’s had to pay thousands of dollars in fees to one of the most powerful political actors in Illinois: the American Federation of State, County and Municipal Employees. AFSCME doesn’t operate according to Janus’ standards of service. “The union’s fight is not my fight,” Janus said. “For years it supported politicians who put the state into its current budget and pension crises. … That’s not public service.”

The First Amendment guarantees freedom of speech and freedom of association. But Janus and many like him argue they’ve endured years of mandated association with unions that don’t represent their interests. Now they’ll wait and see if the Supreme Court agrees. Janus v. AFSCME challenges a 1977 precedent, Abood v. Detroit Board of Education, which has allowed state and local governments to force employees to pay money to unions as a condition of employment. Millions of government employees in 22 states face a choice: pay the union or lose your job. The Supreme Court has signaled it may be ready to overturn Abood. It nearly did just that in the 2015 case Friedrichs v. California Teachers Association, where California teacher Rebecca Friedrichs sued the teachers union at her school for collecting fees in violation of her First Amendment rights. The death of Justice Antonin Scalia in February 2016 led to a 4-4 split decision in Friedrichs. And the issue went unresolved in the nation’s highest court – until now. “I brought this case on behalf of all government employees who also wanted to serve their community or their state without having to pay a union first,” Janus said. The National Right to Work Legal Defense Foundation and the Liberty Justice Center, the litigation partner of the Illinois Policy Institute, are representing Janus in his case. A Janus victory would end forced fees for government workers nationwide. Those workers – teachers, police officers, firefighters and more – who do not want to support a union would no longer be required to do so to keep their jobs. More than half of U.S. states have already outlawed this practice. Union officials have criticized workers like Janus as “free riders” for not wanting to fund the cost of union representation in collective bargaining. Janus has a simple answer for those critics: “Let me out.” “I’ve negotiated my own salary and benefits at plenty of jobs before I started working for the state,” he said. “And I’d be more than happy to do so again.”

In response, AFSCME proponents argue state law requires the union to provide representation to workers like Janus. That’s true. But conveniently left out of that narrative is the fact that Illinois’ biggest government worker unions – including the Illinois Education Association, the Illinois Federation of Teachers and the AFL-CIO – wrote the laws they now bemoan more than 30 years after their passage. Archived witness slips show these groups, as well as AFSCME, registered their support for legislation requiring unions to represent all workers in their bargaining unit, even workers who don’t want union representation. In September 1983, Gov. Jim Thompson signed one of these bills at a union event. There’s a simple solution to this self-imposed problem: Change state law to allow workers to bargain on their own behalf. But AFSCME doesn’t want those voices, such as Janus, to be heard at the bargaining table. Despite the gravity of his case, Janus doesn’t see himself as deserving attention. “I just look at it as an average guy standing up for his own rights of free speech,” Janus said. “I don’t look at it like I’m anybody special or anybody extraordinary.” Janus’ fellow Illinoisans and government workers nationwide, not the Supreme Court, will be the judge of that.