on writ of certiorari to the united states court of appeals for the seventh circuit

June 27, 2018

Justice Alito delivered the opinion of the Court.

Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. 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.

We upheld a similar law in Abood v. Detroit Bd. of Ed. (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.


Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative.

Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to “pay, wages, hours[,] and other conditions of employment.” And this authority extends to the negotiation of what the IPLRA calls “policy matters,” such as merit pay, the size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies.

Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer.  Protection of the employees’ interests is placed in the hands of the union, and therefore the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike.

Employees who decline to join the union are not assessed full union dues but must instead pay what is generally called an “agency fee,” which amounts to a percentage of the union dues. Under Abood, nonmembers may be charged for the portion of union dues attributable to activities that are “germane to [the union’s] duties as collective-bargaining representative,” but nonmembers may not be required to fund the union’s political and ideological projects....

As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities. Here, the nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,” “advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” The total chargeable amount for nonmembers was 78.06% of full union dues. 

Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. The employees in his unit are among the 35,000 public employees in Illinois who are represented by respondent American Federation of State, County, and Municipal Employees, Council 31 (Union). Janus refused to join the Union because he opposes “many of the public policy positions that [it] advocates,” including the positions it takes in collective bargaining. Janus believes that the Union’s “behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.” Therefore, if he had the choice, he “would not pay any fees or otherwise subsidize [the Union].” Under his unit’s collective-bargaining agreement, however, he was required to pay an agency fee of $44.58 per month, about $535 per year....

Janus then sought review in this Court, asking us to overrule Abood and hold that public-sector agency-fee arrangements are unconstitutional. We granted certiorari to consider this important question....

We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.

Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening....

When speech is compelled, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.

Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.  As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” We have therefore recognized that a “ ‘significant impingement on First Amendment rights’ ” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” 

...We again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even a more permissive standard....

In Abood, the main defense of the agency-fee arrangement was that it served the State’s interest in “labor peace,” By “labor peace,” the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, “inter-union rivalries” would foster “dissension within the work force,” and the employer could face “conflicting demands from different unions.” Confusion would ensue if the employer entered into and attempted to “enforce two or more agreements specifying different terms and conditions of employment.” And a settlement with one union would be “subject to attack from [a] rival labor organization.” Id., at 221.

We assume that “labor peace,” in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded. The Abood Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true.... 

In addition to the promotion of “labor peace,” Abood cited “the risk of ‘free riders’ ” as justification for agency fees. Respondents and some of their amici endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.

Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest.....

In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other First Amendment context. We therefore hold that agency fees cannot be upheld on free-rider grounds.

Implicitly acknowledging the weakness of Abood’s own reasoning, proponents of agency fees have come forward with alternative justifications for the decision, and we now address these arguments.

The most surprising of these new arguments is the Union respondent’s originalist defense of Abood. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees.

As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “no [free speech] rights.” 

Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech.  The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “ ‘contemptuous or disrespectful words against the President’ ” and other officials, and an 1801 directive limiting electioneering by top government employees. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected.....

In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment....

For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood. It does not.

Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” We will not overturn a past decision unless there are strong grounds for doing so. But as we have often recognized, stare decisis is “ ‘not an inexorable command.’ ” 

The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.”  And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: “This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).”

Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood....

Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting.

For over 40 years, Abood v. Detroit Bd. of Ed (1977), struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.

That holding fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively. Abood allowed governments to do just that. While protecting public employees’ expression about non-workplace matters, the decision enabled a government to advance important managerial interests—by ensuring the presence of an exclusive employee representative to bargain with. Far from an “anomaly,”  the Abood regime was a paradigmatic example of how the government can regulate speech in its capacity as an employer.

Not any longer. Today, the Court succeeds in its 6-year campaign to reverse Abood.... Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent.....