Nearly 65 years later, on June 27, Mark Mix, president of both the National Right to Work Committee and its legal offshoot, the National Right to Work Legal Defense Foundation (NRWLDF), stood on the steps of the Supreme Court and gave a celebratory interview to Fox News. The occasion of the interview was the Supreme Court’s decision in Janus v. AFSCME, which had been issued earlier that day: “We’re very excited about it. It’s a great day for individual employees, independent-minded employees, not only in Illinois but across the country,” Mix told Fox News’s Bill Hemmer during a friendly three-minute exchange. “The Supreme Court finally got it right!”
Mix had good reason to crow: The foundation had represented Mark Janus, the lead plaintiff in the case, nudging his suit from federal district court in Illinois, where it was dismissed, to the US Court of Appeals for the Seventh Circuit, where it was also dismissed, all the way to victory at the Supreme Court. There, Justice Samuel Alito, writing for the five conservative justices, overturned 41 years of precedent and affirmed the foundation’s argument that public-sector workers like Janus have a First Amendment right to decline to pay fees to unions that represent them in negotiations. “States and public-sector unions,” Alito wrote, “may no longer extract agency fees from nonconsenting employees.”
And then the associate justice went even further. He declared that the longstanding practice whereby workers have to proactively opt-out of a union they do not wish to join also “violates the First Amendment” and that workers must proactively opt in instead. It was a bruising decision, cloaked in the righteous armor of the First Amendment, and it effectively transformed all public-sector work places into “right to work” spaces. It also pushed the nation closer than ever to the committee’s founding anti-labor fantasy.
For public-sector unions, the effects of Janus will likely prove far-reaching and exceptionally challenging to navigate. As Mix observed, not unhappily, on Fox News, “They’re really, really stinging today.” Indeed, by enabling workers to pay nothing for the costs of representation, even as those unions are required by federal law to continue to represent them, the decision is expected to blow a hole in union revenue, as well as membership, and weaken their ability to advocate for workers.