Janus v. AFSCME and Public-Sector Unions After Mandatory Fees

Mark Janus worked as a child support specialist for the State of Illinois, one of thousands of public employees whose job involved paperwork, phone calls and the slow machinery of getting money from one parent to another. He was not a union member. Under his union's contract, though, he paid a fee to the American Federation of State, County and Municipal Employees, the union that represented his bargaining unit, to cover the costs of negotiating and enforcing the agreement. He objected, and his objection was taken up by lawyers from conservative legal foundations who had been looking for exactly this kind of case for years. On June 27, 2018, the Supreme Court ruled in his favour, five to four. Across the country, labor leaders braced for a collapse in public-sector membership. It did not come, or at least not in the shape everyone predicted. What happened instead is a better story and a more useful one.

In short: In Janus v. AFSCME, the Supreme Court held that requiring government employees to pay fees to a union they have not joined violates the First Amendment, overruling a 1977 precedent. Public-sector unions lost fee payers but kept most of their members by organizing them one by one, and the case reshaped how those unions recruit, spend and bargain.

The precedent the Court overturned

For four decades before Janus, the governing case was Abood v. Detroit Board of Education, decided in 1977. Abood drew a line. A public-sector union could require non-members to pay a fee covering the costs of collective bargaining, contract administration and grievance handling, because those services benefit everyone in the unit. It could not require non-members to pay for the union's political or ideological activities. The fee, often called an agency fee or fair-share fee, was supposed to be the price of representation and nothing more.

The logic rested on the same free-rider problem that runs through all of American labor law. When a majority of workers choose a union, it becomes the exclusive representative of everyone in the unit, and it must represent them all fairly. Abood said the government, as an employer, could require everyone who receives that representation to share its cost.

Critics of Abood argued that in the public sector, bargaining itself is political. When a teachers' union negotiates salaries, pensions or class sizes with a school board, it is lobbying a government about how to spend public money. If that is true, they said, then every dollar of a fair-share fee is compelled support for political speech.

The road to Janus

The Court's conservative majority signalled interest in that argument several times before deciding Janus. In Harris v. Quinn in 2014, the Court held that Illinois home care workers paid through Medicaid, whom it described as only partial public employees, could not be required to pay fees, and Justice Samuel Alito's opinion openly questioned whether Abood was rightly decided. In 2016, the Court heard Friedrichs v. California Teachers Association, a direct challenge to Abood, and was widely expected to overrule it. Then Justice Antonin Scalia died in February 2016, and the Court split four to four, leaving the lower-court ruling, and Abood, in place.

Janus arrived as the next vehicle. The case began when Illinois Governor Bruce Rauner, a Republican, sued to stop the state from collecting fair-share fees; when courts held that the governor lacked standing, state employees including Janus were added as plaintiffs. By the time the Court heard argument in February 2018, Justice Neil Gorsuch had joined the bench, restoring a conservative majority.

What the Court held

Alito wrote for the majority. The opinion held that requiring non-members to pay agency fees violates their First Amendment rights, because it compels them to subsidize the speech of a private organization on matters of substantial public concern. It overruled Abood. It also went further than many expected: public employers and unions may not deduct any fee or payment from a non-member's wages unless the employee affirmatively consents, clearly and in advance.

The majority rejected the free-rider argument by pointing out that unions want to be exclusive representatives, because exclusivity gives them power, and that they could seek other arrangements if they did not want to represent non-members.

Justice Elena Kagan wrote the principal dissent. She argued that Abood had been a workable compromise relied upon by thousands of contracts in more than twenty states, that the majority had abandoned the respect owed to settled precedent, and that it was using the First Amendment to strike down ordinary economic regulation of the government workplace. Her dissent accused the majority of weaponizing the First Amendment, a phrase that has since entered wide use among the decision's critics.

The collapse that did not happen

The predictions after Janus were dire. Many observers expected public-sector unions to lose a large share of their revenue and membership as workers stopped paying. Some conservative groups launched campaigns, including mailings and emails, urging public employees to resign their memberships.

The results were more modest. Unions did lose nearly all of their fee payers, the non-members who had been paying only because the contract required it. That was a real financial blow, especially in states that had allowed fair-share fees. But most full members stayed. Public-sector union membership has declined somewhat since 2018, according to federal labor statistics, but far less than the most pessimistic forecasts, and the public sector remains several times more unionized than the private sector.

Why did members stay? Part of the answer is that unions saw the case coming and prepared. In the years before the ruling, many public-sector unions launched internal organizing campaigns, sending stewards and staff to talk with members face to face, asking them to recommit, and identifying what members wanted from the union. Some states with Democratic legislatures passed laws giving unions access to new-employee orientations and to contact information for new hires, so that unions could make their case to workers early.

There is an irony here that progressives can appreciate and conservatives might as well. A ruling designed to weaken public unions forced many of them to do what labor's own reformers had been urging for years: to organize their own members actively, rather than relying on automatic fee collection. The unions that adapted best tended to be the ones that already had active stewards and a culture of member engagement.

The case also produced a wave of follow-up litigation. Plaintiffs sued for refunds of fees paid before Janus; the federal appeals courts largely rejected those claims, generally reasoning that unions had relied in good faith on a law the Supreme Court itself had upheld. Other suits challenged limits on when members could resign, with mixed results.

What changed in the paperwork

Some of the case's most important effects are bureaucratic, which is why they get little attention. Before Janus, in states that allowed fair-share fees, a public employer simply deducted a fee from every covered worker's paycheck. After Janus, the employer may deduct nothing from a non-member without clear, affirmative consent. That turned union finances from an automatic process into a voluntary one, worker by worker.

The decision built on an earlier one. In Knox v. Service Employees International Union in 2012, the Court had already held that when a public-sector union imposed a special assessment for political purposes, it had to get non-members to opt in rather than letting them opt out. Janus extended that opt-in logic to every fee.

Unions responded by changing their membership cards. Many now ask members to authorize dues deductions for a set period, often a year, with a short annual window to cancel. Those windows became the subject of litigation, as some members who resigned outside the window sued to stop deductions. Lower courts have generally upheld such arrangements as ordinary contracts that the worker agreed to, but the issue has not gone away.

A hypothetical new hire

Consider how this plays out for a newly hired caseworker at a county social services agency in a state that allows public-sector bargaining. On her first day, she fills out tax forms, benefits forms and an emergency contact sheet. In some states, a union representative is in the room for part of the orientation and can explain what the contract provides and ask her to join. In others, the union has no access, and she may not learn for months that a union exists or what it negotiated.

If she joins, she pays dues and has a vote on the contract and union leadership. If she does not, she still receives the contract's raises and protections, and if she is disciplined, the union must represent her fairly. Multiply that choice by hundreds of thousands of new hires a year, and you can see why access to orientation became one of the most contested post-Janus issues in state legislatures.

The argument about public-sector bargaining itself

Janus sits inside an older and larger argument: should government workers bargain collectively at all? Even Franklin Roosevelt expressed doubt about collective bargaining in the public service. Critics today argue that public unions sit on both sides of the table, because they help elect the officials who then negotiate their contracts, and that this dynamic drives up pension costs and protects poor performers.

That argument deserves a direct answer. Public-sector bargaining has, at times, produced contracts that burden budgets, and some pension systems are genuinely underfunded. But voters elect the officials who sign those contracts, and those officials can and do bargain hard. Public employees, meanwhile, are teachers, nurses, firefighters, sanitation workers and social workers, often paid less than private-sector workers with similar education. Bargaining gives them a voice on staffing, safety and caseloads that affects the public they serve. A teacher arguing for smaller classes, or a nurse at a public hospital arguing for safe staffing ratios, is not a special interest in any meaningful sense.

The argument has moved well beyond Janus. In March 2025, President Trump issued an executive order ending collective bargaining for large parts of the federal workforce, citing national security. Federal unions sued, and the litigation over that order and related actions has been working its way through the courts. In Wisconsin, the 2011 Act 10 law, which stripped most public employees of bargaining rights, has also been the subject of continuing litigation. You can follow cases like these on our court watch page and on the courts topic page.

What the case means for bargaining now

For public-sector unions, the post-Janus world rewards a few habits.

Membership is earned continually. A union cannot assume its members will stay; it must show them, repeatedly, what it does. That favours unions with active workplace leaders, visible contract wins and regular communication.

State law matters enormously. Whether public workers can bargain at all, over what subjects and with what access to new hires, depends almost entirely on state law. The same national ruling produced very different outcomes in Illinois, California or New York than in states that limit public bargaining.

The free-rider problem is not solved. Unions still must represent non-members, at their own cost. Some states have explored allowing unions to charge non-members for individual grievance representation, and some reformers have proposed letting unions represent only their members. Each approach has trade-offs, and none has become standard.

Here's our view: Janus was a wrong decision, but it was not a fatal one, and the reason is worth studying. Institutions that are close to the people they serve survive legal shocks better than institutions that run on autopilot. That lesson applies well beyond unions.

Some unions also discovered that the conversations they started to keep members produced something they had not expected: new stewards, sharper contract demands and members who knew what the union had actually won for them.

The precedent question

Beyond labor, Janus is often cited in arguments about how readily the Supreme Court should overrule its own decisions. The majority treated Abood as poorly reasoned and said that workability and reliance did not justify keeping it. The dissent warned that if a forty-year precedent relied on by thousands of contracts could fall, few precedents were safe. The same debate returned, in sharper form, in later cases on other subjects. Readers who care about the Court's direction can learn a good deal by reading Janus alongside those later decisions and asking which approach to precedent each justice takes, and whether it stays consistent when the outcome changes.

What you can do

The future of public-sector bargaining is being decided in statehouses and courtrooms. Here are ways to take part.

• Know where your state stands. Bargaining rights for teachers, nurses and other public workers vary by state. Our workers and unions topic page collects coverage of state laws and court fights over public-sector bargaining.
• Talk to your state legislators. Access to new hires, payroll deduction and the scope of bargaining are all state law. Find your legislators and their contact forms on the representatives lookup.
• Follow the federal workforce cases. Lawsuits over bargaining rights for federal employees will shape what any administration can do. The court watch page tracks Supreme Court opinions and the emergency docket.
• Thank and support public workers directly. School support staff, transit workers and public hospital employees often organize around issues that affect you, such as class sizes and staffing. Groups that support them are listed on the organizations page.