Supreme Court Justice Neil Gorsuch remained silent during the court’s oral arguments Monday in the case Janus v. American Federation of State, County and Municipal Employees, leaving unclear what he thinks about a major case involving public employee unions’ power to compel fees from non-members.
The newly appointed justice is the only member of the bench whose position on the issue is unknown, as the other justices split 4-4 on a nearly identical case last year.
The power of public sector unions, and thus, the labor movement as a whole, could hang in the balance of the case. AFSCME attorney David Frederick told the justices that the funds — dubbed “agency fees” — were crucial to his client. “Without them, union membership goes down, union density goes down,” he said.
The plaintiff in the case, Illinois Department of Public Health employee Mark Janus, has sued AFSCME over a $50 fee it gets from him every month despite the fact that he never joined the union. The fee, meant to cover collective bargaining expenses, is automatically deducted from his paycheck under the terms of a contract the union signed with the state long before Janus got his job. He argues this violates his First Amendment rights by forcing him to subsidize an organization he doesn’t support.
The seemingly minor financial dispute might be the most significant case the justices hear this session. Janus’ case could overturn a 1977 precedent, Abood v. Detroit Board of Education, that established that public sector union contracts can force workers like Janus to pay the unions or else lose their jobs. Organized labor is fighting to keep that power.
The Supreme Court’s conservative wing nearly overturned Abood in a case last year called Fredrichs v. California Teachers Association, but ultimately deadlocked on the case after Justice Antonin Scalia’s death prevented a majority.
Gorsuch, Scalia’s replacement, is believed to be a conservative but has not previously weighed in on the issue. He sat in silence throughout all the oral arguments Monday, and the other justices said nothing to indicate their positions had changed or that they thought the Janus case was different from the earlier case.
Frederick and Illinois Solicitor General David Franklin argued that Abood settled the question of whether the fees were allowable and that overturning it now would be too disruptive. Frederick argued that it would undermine “labor peace” in public sector workplaces. “Unions, when they lose agency fees, get more militant, more confrontational,” Frederick said.
William Messenger, attorney for the National Right to Work Legal Defense Foundation, which is representing Janus, argued that the agency fees forced Janus to support the union’s political positions, in turn violating his First Amendment rights. He argued that because the union’s contract impacted the state budget, that made the collective bargaining inherently political, which wouldn’t be the case if Janus simply requested a raise on his own.
“So you are arguing that when an employee negotiates with their employer, that is not a First Amendment issue, but not when a union does collective bargaining?” asked Justice Elena Kagan. Messenger said, “Very much so, yes,” to which Kagan replied that she didn’t see the difference.
Justice Sonya Sotomayor said the government had a “compelling interest” in being able to monitor its workplace, and that justified the fees.
Just under half of the nation’s 15 million union members work in the public sector and the agency fees their unions get through Abood are believed to be crucial to their finances. A victory for Janus could be a crippling economic blow to the entire labor movement.
The AFL-CIO, the nation’s largest federation, has called the Janus case “a case that would rig the system even more against working people by taking away their freedom to have strong unions.”
Union leaders argue that because unions are usually legally obligated to represent all workers in a workplace, it is only right that the unions be able to charge those workers fees for collective bargaining on their behalf. Otherwise, the workers become “free riders” on the union.
Janus told the Washington Examiner last week that he doesn’t see any benefit that the union provides him or his workplace. If anything, it is the union that is free riding on workers like him, he says, by getting a cut from their paychecks while doing little if anything for it.
In 27 states, workers have the option under “right to work” laws to refuse to join or otherwise pay the union that represents their workplace. Should Janus’ case overturn Abood, it would effectively put all public sector workers under right to work protections. Such states usually have fewer and weaker unions. Public sector union leaders fear a mass exodus of members and a major drain on their treasuries should that happen.
An internal survey by AFSCME, which has 1.6 million members, found that only a third of them would voluntarily pay dues no matter what, and half of its membership couldn’t be counted upon to do that, according to a 2015 Bloomberg report. A nontrivial minority of 15 percent would be certain to opt-out of paying dues entirely.
