The Washington PostDemocracy Dies in Darkness

The Supreme Court’s Janus ruling is flawed. Canadian legal history shows why.

Demonstrators outside the Supreme Court on Monday. (J. Scott Applewhite/AP)

As expected, the Supreme Court dealt a devastating blow to U.S. labor unions this week. The case, Janus v. AFSCME Council 13, involved a plaintiff, Mark Janus, who did not think that he should have to contribute to the costs associated with negotiating and enforcing the union contract from which he benefits as an Illinois state employee. Janus’s attorneys argued that compelling him to financially contribute to the union that represents him violated his First Amendment freedom of speech, as it required him to subsidize speech with which he disagrees.

The court largely agreed, with Justice Samuel A. Alito Jr. writing for the majority, “We conclude that this arrangement violates the free speech rights of nonmem­bers by compelling them to subsidize private speech on matters of substantial public concern.” Many expect that the ruling will further weaken labor unions by encouraging union-represented workers such as Janus to opt out of paying for benefits they can now get free, thereby defunding unions.

Given the trajectory of labor law in the United States, that conclusion feels almost inevitable, but it’s important to remember that things could be otherwise. North of the border, Canadian workers and their unions have faced challenges similar to those of their U.S. counterparts. Through the 1980s, the Canadian Supreme Court also construed constitutional rights in ways that restricted workers’ collective freedom. But that changed when it embraced the idea that workers’ constitutional freedom of association includes the right to act collectively. Studying that shift helps demonstrate where the United States has gone wrong, increasingly moving toward a model in which courts rely on a romanticized notion of individual rights to deny workers their collective rights.

With Janus, the Supreme Court guts the modern labor movement

The Janus decision plays out against a long history of courts interpreting the Constitution to restrict worker freedom. In the 19th century, their preferred tool was antitrust law, as they held that workers’ collective action infringed on employers’ freedom to engage in commerce. The Supreme Court’s 1905 Lochner v. New York decision held that basic labor protections such as maximum-hour laws violated workers’ individual freedom of contract. The economic devastation and political upheaval of the Great Depression persuaded the court to back away from Lochner and affirm labor protections such as minimum-wage laws and the right to join a union. Those expanded workers’ freedom by making it easier to earn a decent living and limiting the petty despotism they faced from their employers.

But soon after the courts expanded workers’ freedom, they sought to constrain it.

They did so under the watchword of “balance.” In the 1938 National Labor Relations Board v. Mackay Radio & Telegraph Co. decision, the court “balanced” workers’ collective right to strike against employers’ right to run their businesses. This allowed employers to permanently replace striking workers, making the right to strike one that could be exercised only at the potential cost of one’s livelihood.

Labor board rulings in the 1950s established an “employer free speech” doctrine, which balanced workers’ right to join a union against employers’ right to speak out against unions. In practice, this gave employers free rein to engage in campaigns of threats and intimidation that have proved effective at cowing workers into not exercising their union rights.

The 1976 Hudgens v. NLRB decision ruled that workers’ First Amendment freedom of speech took a back seat to employers’ property rights. More recent Supreme Court decisions such as Harris v. Quinn in 2014 have continued to restrict workers’ freedom to engage in collective action in favor of narrowly construed individual free-speech rights.

There’s a problem here: The court’s idea of “balance” creates an illusion of equality between workers and employers in a relationship that is inherently unequal. Save for a few highly skilled workers, most individuals have little bargaining power vis-a-vis their employers. For them, bargaining is more of a take-it-or-leave-it affair — take what the boss offers or leave it in the hope of finding a better deal somewhere else.

Creating a more equal bargaining relationship requires actively defending and enforcing workers’ freedom to act collectively. And key to defending that freedom is to ensure that all who benefit from the collective good contribute to maintaining it. By allowing individuals to opt out of contributing to the collective good from which they benefit, the Janus ruling ends up undermining worker freedom.

For decades, Canadian courts took a similar approach to argue that individual freedoms of expression and contract superseded workers’ right to engage in collective action.  In rulings throughout the 1980s, the Canadian Supreme Court restricted workers’ collective freedoms to bargain and strike. Yet the jurisprudence began to shift in 1991, when the Supreme Court heard a case eerily similar to Janus titled Lavigne v. Ontario Public Service Employees Unionand rejected the idea that mandatory fees infringed on workers’ freedom of speech.

That case involved a disgruntled public employee financed by a national right-wing taxpayer lobby who sought to eliminate the mandatory-dues provisions in the Ontario Labor Relations Act. The court agreed that Francis Lavigne had no grounds to argue that his right to freedom of expression was violated because, as Justice Bertha Wilson maintained, “the agency shop clause in the collective agreement [mandating that workers pay union fees] does not inhibit him in any meaningful way from expressing a contrary view as to the merits of the causes supported by the Union. He is free to speak his mind as and when he wishes.”

For the Canadian court, collecting dues for the union to collectively bargain and individuals’ ability to freely express themselves were two entirely different things.

In response to worker challenges, strikes and increased government attacks on workers’ collective freedoms, the Canadian Supreme Court has gone further than it did in Lavigne to affirm the importance of collective action for worker freedom. In 2015 and 2016, it declared that the right to organize and join a union, engage in collective bargaining and go on strike is part of workers’ constitutionally protected freedom of association.

The dissent in Janus shows that liberal justices are finally on the side of the working class

The court reasoned that “collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association” and that “the ability to strike … is an affirmation of the dignity and autonomy of employees in their working lives.” Moreover, the court was convinced that constitutionally protecting workers’ ability to bargain and strike was an effective way to address the power imbalance that businesses (and governments) maintain over workers as employers.

The Canadian Supreme Court has come to see the importance of collective action for protecting workers’ freedom. Meanwhile, the U.S. Supreme Court is going in the opposite direction. Its ruling in favor of Janus will undermine workers’ ability to exercise their freedom of association and will increase employers’ power. Moreover, in ruling that the Constitution protects individuals from refusing to pay union dues, the U.S. Supreme Court has given governments free rein to intensify anti-union labor law such as right-to-work measures, something that is now unlikely in Canada. It is now clear that the U.S. court’s ruling in Janus returns the law to an era when courts used narrow conceptions of individual rights to deny protections to the majority. Without affirming the importance of collective action, the Supreme Court cannot ensure freedom for all workers.