In Janus v. AFSCME (2018), the Supreme Court overruled Abood v. Detroit Bd. of Ed. (1977). Justice Alito's majority opinion ruled that the principles of stare decisis did not justify retaining Abood. One aspect of his decision has some relevance for the present moment. In Janus, Justice Alito addressed reliance interests. Specifically, he wrote that the unions should have been on notice that Abood was on the chopping block. After all, recent decisions like Knox, Harris, and (in a way) Friedrichs chipped away at Abood.
Justice Alito wrote:
For another, Abood does not provide "a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced." South Dakota v. Wayfair, Inc., ante, at 20; see supra, at 38–41.
This is especially so because public-sector unions have been on notice for years regarding this Court's misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment "anomaly." 567 U. S., at 311. Two years later in Harris, we were asked to overrule Abood, and while we found it unnecessary to take that step, we cataloged Abood's many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood. Friedrichs v. California Teachers Assn., 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) (per curiam). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain.
