Twice in the past five years the United States Supreme Court has questioned its holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (6-3 decision on this issue), that the First Amendment allows a government to force its employees to pay “agency fees” to a labor organization that is their “exclusive representative” for purposes of “collective bargaining” with the government. See Harris v. Quinn, 134 S. Ct. 2618, 2632-34 (2014); Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2289 (2012). Last term the Court agreed to revisit the issue in Friedrichs v. California Teachers Ass’n, and many legal observers of the oral argument in that case speculated that the Court would overrule Abood. However, the Court deadlocked 4 to 4 in Friedrichs due to the untimely death after oral argument of Justice Antonin Scalia. 136 S. Ct. 1083 (2016). On June 6, 2017, Attorneys from the National Right to Work Legal Defense Foundation and the Illinois Liberty Justice Center filed a petition for writ of certiorari with the Court for Mark Janus, a nonmember Illinois state employee, that presents the same question that Friedrichs presented: “should Abood be overruled and public-sector agency fee arrangements be declared unconstitutional under the First Amendment?” Janus v. American Fed’n of State, Cty, & Mun. Employees, Council 31, No. 16-1466 (U.S. docketed June 8, 2017). The case has already generated a lot of media attention.
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Raymond J. LaJeunesse, Jr. is Vice President & Legal Director at the National Right to Work Legal Defense Foundation, Inc.