The Supreme Court heard arguments Monday morning in a case set to undo a seminal 40-year-old precedent that required all public sector employees to pay their union a “fair share fee” whether or not they’d elected to join.
Janus v. AFSCME is an effective redo of the 2015 case Friedrichs v. California Teachers Association, which ended in a 4-4 tie following Justice Scalia’s death—another opportunity to overturn 1977’s Abood v. Detroit Teachers Association.
The case for the petitioner, Illinois child services specialist Mark Janus, holds that compulsory fees constitute compelled political speech and violate the First Amendment. The justices’ questions to AFSCME’s attorneys closely recalled those they’d asked when Friedrichs was argued more than two years ago.
Justice Sonia Sotomayor, in her initial questions to Janus’s attorney William Messenger, challenged the idea that the government should be permitted to fire public workers without having to ensure them union representation. Her line of questioning betrayed a particular view of the public servants’ role in a self-governing republic, a view that diminishes their service to the public—and, in practice, permits political use of compulsory dues.
Whether her view will prevail remains to be seen: Justice Neil Gorsuch, who will likely cast the deciding vote, stayed silent throughout. He didn’t tip his hand one way or the other. Justices Anthony Kennedy and Samuel Alito took up the topic of unions’ political spending, asking similar questions to the ones they considered last time the court took up the question of forced dues.
“Suppose that 80 percent of the fees of the union dues went to matters that were highly political in nature and 20 percent to wage negotiations and grievances,” Justice Kennedy asked union lawyer David Franklin. “Would that change your view?”
Franklin answered, somewhat limply, “I don’t know that it would.” And Kennedy, with a searing finality, said, “Then it seems to me your argument doesn’t have much weight.”
“It was very similar to the Friedrichs argument,” Messenger told me Monday afternoon, reflecting on that morning’s court proceedings. “There was nothing terribly new.”
The difference, of course, is that this time, the court’s decision won’t be another 4-4 tie: It will set a precedent. “Assuming Mr. Janus wins, 5 million public employees—all those compulsory dues clauses will become invalid—they’ll have the right to choose whether or not they want to support a union,” said Messenger.
Vincent Vernuccio, of the conservative Mackinac Center, observed, “The union attorneys were trying to split hairs, but at the end of the day, I think a very strong case was made for the First Amendment this morning.”
Vernuccio noted an especially important moment: Chief Justice John Roberts pointed out that the policy of voluntary dues payment has demonstrably improved public unions in right to work states.
“Well, the argument on the other side, of course, is that the need to attract voluntary payments will make the unions more efficient, more effective, more attractive to a broader group of their employees,” Roberts said. “What’s wrong with that?”
David Frederick, a lawyer for AFSCME, appeared exasperated, according to individuals present; he seemed to sense he stood on unstable ground.
But Gorsuch, the presumed tiebreaker, didn’t say a word. And his opinion on the matter isn’t known. “The reality is that we don’t know what Justice Gorsuch’s opinion is on this topic. He didn’t write about it when he was on the Tenth Circuit, he didn’t ask any questions today, so we’ll just have to wait for the decision,” Messenger said.
Kennedy, for his part, did make note of the case’s expected outcome in a pointed exchange with Frederick.
He acknowledged the anxiety of public sector unions as they’ve prepared for a major blow from the highest court, asking the lawyer whether he thinks “this case affects the political influence of the unions.” Frederick said, “No,” it doesn’t.
Kennedy challenged, “I can try to find a union newsletter which says, ‘Don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us’?”
He went on: “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?” And Frederick allowed, “Yes, they will have less political influence.” To which Kennedy said, “Isn’t that the end of this case?”
The court’s expected to hand down its decision—the actual end of this case—by May or June of this year.
