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Prof. Lee draws parallels to the first right-to-work litigator in reaction to SCOTUS ruling on union dues

June 27, 2018

In another 5-4 decision by the Supreme Court, the court ruled that government workers can’t be forced to contribute to labor unions that represent them in collective bargaining. The court ruled that the laws violate the First Amendment by compelling workers to support unions they may disagree with. Penn Law’s Sophia Lee provides her thoughts on the Janus v. AFCSME decision


“The Supreme Court’s decision striking down union agency fees in Janus v. AFCSME comes as no surprise to the parties or to court watchers. As foregone a conclusion as right-to-work activists’ victory was, in other ways the decision is a reminder of how deeply embedded in politics, and thus how mutable, constitutional law is. It’s been about 75 years since the first right-to-work litigant brought the compelled speech claim the Court vindicated today. Back in the 1940s, the courts easily dismissed the case. They didn’t see anything wrong with unions requiring the workers they represented to support the union’s political activity. They reasoned that no one imputed the union’s position to the worker and the worker remained free to lobby against the union’s position. That first right-to-work litigant happened to be Hollywood mogul Cecil B. DeMille, and he devoted the rest of his life, along with his fame, fortune, and marketing savvy, to changing how the courts saw his constitutional claim. For DeMille, the way to win in court was as much about changing how the public saw unions and saw the connection between money and speech as it was about hiring smart lawyers and writing great briefs. It took 75 years of political advocacy to bend what DeMille’s lawyer referred to as the constitutional “spirit of the time” to DeMille’s vision. But that effort has paid off in Janus. The decision is a reminder that political movements who invest in constitutional change can meet great success if they play the long game. It may also prove a harbinger of peril for other aspects of New Deal-era constitutional law that have likewise been under sustained, decades-long attack.” 

-Sophia Lee, Professor of Law and History