Right to work revitalizes the Lochner era.

Justice Samuel Alito’s majority opinion in Janus is the most egregious example of Lochner-ism in modern judicial history. It reverses a 1977 decision, Abood v. Detroit Board of Education, in which the Supreme Court ruled that public sector unions may collect “fair share” fees from nonmembers to fund collective bargaining. To justify overturning Abood, Alito declared that fair share fees impose an unconstitutionally “heavy burden” on nonunion members’ First Amendment rights. Why? Because, to Alito, all union speech—including negotiations over salaries, health insurance, and child care benefits—is fundamentally political.

This analysis is sheer nonsense. Fittingly, given Alito’s unabashed hostility toward unions, it rests on the dubious presumption that demands for basic workplace benefits are inherently “political.” And it flouts precedent that gives the government wide latitude to restrict public employees’ speech, even on matters of public concern. Alito essentially carved out an exception to the general First Amendment rules for the express purpose of hobbling unions. His decision was pure partisan politics, a handout to the “right to work” movement.

Janus isn’t shy about reviving Lochner. Alito’s opinion points out that “into the 20th century, every individual employee had the ‘liberty of contract’ to ‘sell his labor upon such terms as he deem[ed] proper.’ ” To support this proposition, he cites 1908’s Adair v. United States—a defining decision of the Lochner era. Both Lochner and Adair rested on the premise that the Constitution protects an individual’s right to sell his labor at any cost. This doctrine trammeled minimum wage and maximum hour rules, as well as laws safeguarding workers’ right to unionize. Janus restores this premise in a slightly altered form, replacing “liberty of contract” with “associational freedoms.” The upshot is the same: Laws designed to benefit labor’s ability to act collectively are inherently suspect.