For the third time in four years, the justices of the U.S. Supreme Court clashed over the rights of government employees who don’t want to pay for the union services they receive in labor-friendly states.
But one judge's voice was conspicuously absent.
Justice Neil Gorsuch, who joined the court last year after being appointed by President Donald Trump, remained silent during arguments on Monday. That’s notable because Gorsuch has seemed eager to spar with his colleagues during previous arguments and, more importantly, because he was the only member of the court not to participate in a similar case that ended in a 4-4 tie two years ago after the death of Justice Antonin Scalia.
Gorsuch has voted reliably with the court’s conservative bloc, which wants to invalidate mandatory fees for union services and, in the process, overturn a 1977 decision called Abood v. Detroit Board of Education that allowed for unions to collect them. That's left many observers to conclude that the Abood ruling is hanging by a thread.
Both inside and outside the courtroom, the arguments in Monday’s case centered on two distinct but very much interconnected themes.
The first is the heart of the legal argument: Does it violate a public employee’s First Amendment rights to be forced to pay an “agency fee” for services that unions provide on his behalf? Agency fees, sometimes called “fair-share fees,” are different from union dues. They pay for services like collective bargaining and grievance resolutions but do not pay for direct lobbying or political donations.
The challengers to the agency fees argue that they violate the constitutional right to free speech because they are a form of forced speech that requires non-union members to back union positions on the size, scope and operations of government.
The second main theme deals with political reality: Would eliminating unions’ ability to collect agency fees cripple their ability to represent workers and the ability of governments to manage their workplaces?
Unions and their supporters claim that getting rid of the agency fees would create a “free rider” problem. People would stop paying union dues because they were getting the services from the unions anyway. That, in turn, would drive up the price of union dues, prompting more people to leave the union. Eventually, the unions would not be financially viable or represent enough workers to collectively bargain on their behalf.
The political implications were not lost on the judges.
Justice Elena Kagan pressed a lawyer representing Mark Janus, an Illinois state worker at the center of the case, about what would happen if the fees were declared unconstitutional.
“Twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once. Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million, workers,” Kagan said. “When have we ever done something like that? What would be the justification for doing something like that?”
Janus’ lawyer, William Messenger, said the widespread use of agency fees showed precisely why the court needs to overturn its 40-year-old case.
“The prevalence of these compulsory unionism provisions isn't reason for retaining [the decision in] Abood; it's reason for reversing Abood. You have wide-scale First Amendment violations, as you said, in 23 states affected,” he argued.
Justice Anthony Kennedy, a conservative who is often a swing vote in close cases, led the attack against agency fees. He rejected the argument that agency fees are not political because they don’t expressly support candidates or lobbying activities.
David Franklin, the top appellate lawyer for the state of Illinois, told the judges that agency fees help governments smoothly administer their workplaces.
“We have an interest at the end of the day in being able to work with a stable, responsible, independent counterparty that's well-resourced enough that it can be a partner with us,” Franklin told the court.
But Kennedy interrupted him.
“It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes?” he asked incredulously.
Kennedy also sparred with David Frederick, who represented the American Federation of State, County and Municipal Employees (AFSCME) Council 31.
“I'm asking you,” Kennedy said, “whether or not in your view, if you do not prevail in this case, the unions will have less political influence: yes or no?”
“Yes, they will have less political influence,” Frederick responded.
“Isn't that the end of this case?” Kennedy asked.
“It is not the end of the case,” Frederick answered, “because that is not the question. The question is: Do states, as part of our sovereign system, have the authority and the prerogative to set up a collective bargaining system in which they mandate that the union is going to represent minority interests on pain of being subject to any fair labor practice?”
Justice Sonia Sotomayor, meanwhile, pressed lawyers for Janus and the Trump administration (which backs Janus’ claim), to explain why the same rationale for striking down union agency fees couldn’t also be used to invalidate other types of compulsory fees, such as bar association dues or student activity fees.
Those types of fees have been held up by the court, she said, because the people who pay them still have other ways of making their opinion known.
“Bar members can come out any day they want and say they don't take the same position on a policy question as the bar association. Any union member is free to get up publicly in any setting he or she wants to say they don't agree with the position the union is taking,” Sotomayor said.
She also tried to get the lawyers pushing to invalidate agency fees to explain what the difference was between, for example, a single employee asking for a raise -- which everyone agrees wouldn’t violate the First Amendment -- and a union asking for raises on behalf of hundreds of employees at the same time.
Sotomayor pushed back when Messenger argued that it was the “scale” of the bargaining that distinguished it.
“You have AFSCME bargaining over issues that affect hundreds of millions of dollars and affect thousands of employees across the board,” Messenger said, before Sotomayor interjected.
“It's not going to change whether the union asks for it or the employees come … into an auditorium at a business site of the state and every one of them got up and said, ‘I want higher wages,’” she said. “The scale of that demand makes it protected by the First Amendment? It’s still a work-related demand.”
The underlying case comes from Illinois, where disputes over the power of organized labor in government have raged for years.
In fact, the Supreme Court previously heard a case from Illinois, called Harris v. Quinn, dealing with almost the exact same issue. But the judges resolved that case in 2014 without tackling the issue of agency fees head-on because the plaintiffs in that case were only “partial public employees.”
When Gov. Bruce Rauner took office in 2015, though, he immediately made weakening public-employee unions a central piece of his agenda. One of the things he tried to do was to prevent unions of state employees from collecting agency fees. That gambit ultimately failed, but it launched the case now before the Supreme Court. (The governor was dismissed from the lawsuit long ago, but it continued through the courts with Janus as the plaintiff.)
The Republican governor’s push to rein in organized labor was also a big reason for a two-year budget standoff between him and the Democratic-controlled legislature.
But on Monday, Rauner took in the oral arguments and used an appearance before reporters on the steps of the Supreme Court to criticize the “unfettered power” of unions.
“Everything a government union does is political,” he said. “Any payment to a government union is, by its very nature, political.”
Rauner said he hoped public employee unions would be “forced to compete” to represent government workers, if the agency fees are struck down. But he also called the public sector unions “contrary to the public good” and described denying them agency fees as “an anti-corruption issue.”
Asked if he thought the public sector unions ought to exist at all, he said they “should not be given unfettered… power.”
Lisa Madigan, Illinois’ Democratic attorney general, on the other hand, said eliminating fair-share fees would make it more difficult to manage government workplaces because unions become more “belligerent” and workplace interactions become more “aggressive.”
Her office defended the agency fees before the high court, and one of its lawyers said afterwards that, if public sector agency fees are eliminated, he expects the court to attack similar provisions in the private sector as well.
Madigan said the real argument before high court was a political one.
“This case is not about impinging on anybody’s First Amendment rights. The law already protects people’s First Amendment rights,” she said. “This is a case where there are a small group of very well-funded, right-wing extremists who want to eliminate unions throughout the country.”