I'm not a lawyer and you'll be able to cite a thousand cases to my one. My sister's neighbor is on the state Supreme Court where I live. He's said to me that a good lawyer can argue any case and cite a bunch of reasons to support his/her case.
For me the case is simple. The collectively bargained rules apply to everyone in the workplace. As such those who benefit from said bargaining ought to pay for it. This has been an established practice for many, many years. Each state has the right to negate this and many have enacted misnamed right to work laws. There is no compelling reason to change the current practice. Janus' speech is not currently threatened and the greater public interest should be the one that prevails. It won't though.
I'd agree with you if it weren't for the fact that this is about the government and government employees everywhere you look.
I never understood how we as a society and how the labor union movement could tolerate the existence of public employee unions in the first place, as they end up intermingling two otherwise very distinct worlds, as I believe has happened here.
What you call "collective bargaining" in this case I could call "pure political pressure", since the "bargaining" is against politicians.
That sounds awfully Constitution-ey to me.
Janus is not really about free speech. It’s an attempt to destroy unions by letting people benefit from collective bargaining without paying for it. It’s called the free rider problem.
Because one is the government and the other isn't. That's my whole point about it being reasonable that this is a Constitutional issue.
There's also the, arguably separate, issues of incentives and who ultimately pays. In the case of private employers, it is, presumably a powerful few trying to exploit the labor of the many. In the case of government, it's the taxpayer/voter who is ultimately being bargained "against".
What are public employee unions trying to prevent? The exploitation by the many (voters) of the labor of the few? That seems wholly unreasonable to me.
> Why shouldn’t a union be political? Don’t workers have a right to gather in a group and be political? Government workers should be excluded from this activity?
(Again, not a union, but a public employee union:)
Because they are, in effect, circumventing the normal political process. By using the power to strike, they're seizing power from the voters.
> Why shouldn’t a union be political?
By that argument, why shouldn't the government force you to donate money to political advocacy groups that it chooses, whether or not you support the group's agenda?
Heck, what if your employer decided that a portion of your paycheck would be deducted as a mandatory donation to either the Democratic or Republican party, as part of the terms of your employment?
Since you are making a distinction about public vs. private unions it appears that this is not a constitutional issue. It seems to be one where you don’t like that they generally endorse and support one party over the other. There are very few entities that are neutral. All sufficiently large entities become political to some degree.
This is completely false. People absolutely are forced to join unions.
Furthermore, the overwhelming majority of union members - over 90% - never voted in a certification or authorization election. That means that, even if they're members of the union, their membership cannot in se be considered an endorsement of the union by the bargaining unit. Because it's all-but-impossible to successfully decertify a union in practice[0], it's not uncommon to have the majority of employees oppose union membership, but still be compelled into membership.
> They are, for the time being, in some states required to pay for fair share dues to cover the costs of collective bargaining, grievances, and other administrative costs
People within the bargaining unit are usually forced to pay dues whether or not they are members.
[0] The NLRB has the power to overturn the results of decertification, and a very strong incentive to do so. In addition, unions have learned that they can change the definition of the bargaining unit after an election is held in order to invalidate the election retroactively.
Private entities can limit free speech all they want; public entities cannot.
Disagree with your ipse dixit labeling. The FAA is broad and general, at least according to SCOTUS precedent, covering all contracts between all parties, covering all types of conduct in all industries, as long as "commerce" is involved. In contrast, NLRA § 7 was targeted to one specific category of contractual parties, namely employees and employers, and protected employees' right to engage in one specific type of conduct, namely concerted activity in two specific areas, namely (1) wages and (2) the terms and conditions of employment.
Moreover, as Ginsburg's dissent correctly pointed out, as the later-enacted statute, § 7 implicitly overruled anything to the contrary in prior legislation — because it's risible to think that Congress, in enacting a court-enforceable right to concerted action by employees, intended to allow the very target of employees' concerted action, namely the employer, to unilaterally strip away that right as a practical matter, whether by insisting on a no-class-action arbitration provision or by any other means.
I'm reminded of a conversation I had many years ago as a law student: Knowing little (then) about litigation, I innocently asked a litigation partner: "A nonsuit [a unilateral dismissal of a case in Texas state court] can only be filed by the plaintiff, right, and not by the defendant?" He laughed and said "Right; otherwise I'd be hurrying back to my office and dictating a whole lot of defendants' nonsuits." But now under this SCOTUS decision, employers get to do essentially much the same as a defendant unilaterally dismissing a plaintiff's case, without so much as a by-your-leave to a court or anyone else.
I dunno about that — my guess is that Congress intended a heavy presumption: Anything that materially diminishes the right to concerted action is unlawful. I know, materiality will often be hotly contested. Here, though, an employer's ability to unilaterally take away one of employees' key enforcement weapons, viz., the class action, seems pretty freakin' material.
