Justice Gorsuch Silent as Supreme Court Weighs Public-Employee Union Fees

By Mark Walsh — February 26, 2018 6 min read
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[UPDATED: Monday at 2:08 p.m.]


The U.S. Supreme Court heard arguments Monday in a major case about public-employee unions, with four justices appearing to support upholding agency fees for nonunion members and four other justices giving every indication that they are inclined to overrule a 40-year-old precedent that authorized such fees.

That leaves the tie-breaking vote in Janus v. American Federation of State, County, and Municipal Employees Council 31 (Case No. 16-1466) to the court’s newest member, Justice Neil M. Gorsuch, who listened intently during the 60-minute argument but did not ask any questions and thus did not tip his hand.

Justices Samuel A. Alito Jr. and Anthony M. Kennedy aggressively questioned lawyers for the state of Illinois and for AFSCME, who were defending the 1977 decision in Abood v. Detroit Board of Education that authorizes teachers’ unions and other public-employee groups to charge fees for collective bargaining-related services to those workers who decline to join the union.

“Is there any limit on what states can make a mandatory subject of collective bargaining?” Alito asked David C. Frederick, the lawyer representing AFSCME, who also represented the National Education Association and its California affiliate two years ago in Friedrichs v. California Teachers Association. In that case, the justices deadlocked 4-4 after Justice Antonin Scalia’s death, and agency fees survived.

Alito was suggesting that states could make even state spending on education a matter for collective bargaining and thus eliminate the line drawn in Abood and later cases between matters the unions can charge to agency-fee payers and their more ideological spending.

Kennedy was more blunt, asking Frederick, “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 said.

“Isn’t that the end of this case?” Kennedy responded.

No, Frederick said, because the states have the sovereign power to set up a public-employee bargaining system in which they mandate that the unions represent the interest of everyone in the bargaining unit.

Frederick said that if the court overturns Abood, “it will affect thousands of contracts and, more importantly, it is going to affect the work of state legislatures, city councils, school districts, who are going to have to go back to the drawing board in deciding what are the rules for negotiating and how that works.”

David L. Franklin, the solicitor general of Illinois, who was defending Abood along with Frederick, said that the state has an interest “at the end of the day in being able to work with a stable, responsible, independent counterparty” in the unions who will “be a partner with us” in contract negotiations.

Kennedy suggested that also meant that the unions “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, [and] for increasing taxes.”

Chief Justice John G. Roberts Jr. also made comments sympathetic to Janus’s side. Justice Clarence Thomas, who remained silent as usual, is on record signing the court’s 2014 opinion in Harris v. Quinn, in which Alito wrote a majority opinion that questioned the validity of Abood but stopped short of overruling it. Roberts and Kennedy also signed that opinion, as did Scalia.

Packed Courtroom

The courtroom was packed for the Feb. 26 arguments in Janus, with U.S. Secretary of Education Betsy DeVos in attendance as hundreds of sympathizers on both sides of the issue rallied on the sidewalk outside the court.

Members of the court’s liberal bloc, who all dissented in Harris and signed an opinion defending Abood, were just as aggressive in questioning the lawyers arguing for overruling the 1977 decision.

“You’re basically arguing do away with unions because you are really ... saying every single employee decision is really a public policy decision,” Justice Sonia Sotomayor told William L. Messenger, the lawyer from the National Right to Work Legal Defense Foundation representing Mark Janus, an Illinois state worker who objects to paying an agency fee to AFSCME.

Justice Ruth Bader Ginsburg told Messenger that overruling Abood and eliminating agency fees would motivate some current dues-paying members to decide not to maintain their membership, and “the resources available to [the unions] could be substantially diminished.”

“Well, to the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that’s a perfectly acceptable result,” Messenger said.

Justice Stephen G. Breyer told U.S. Solicitor General Noel J. Francisco, who was arguing in support of Janus on behalf of President Donald Trump’s administration, that he once heard Archibald Cox, who was U.S. solicitor general under President John F. Kennedy (and later a Watergate special prosecutor) say that the employee-grievance process was the key to labor peace from 1945 to 1970.

If Abood is overruled, Breyer said, workers will see “that this court has suddenly cut legs, at least one, out of the financing of a system that at least ... some people think it brought labor peace.”

Francisco said he believes that the grievance process “raises serious First Amendment concerns as well, but for purposes of this case, the focus is on the cost of collective bargaining, and I don’t think you necessarily have to go any further than that to resolve this case, since the whole idea of agency fees, their justification and their purpose, has been predicated on the need to compel support for the collective-bargaining process.”

Justice Elena Kagan, who wrote a strong defense of Abood in her dissent in the 2014 Harris case, questioned Francisco about his view that union representation of public employees invokes First Amendment free speech and association interests when employment matters between a government and an individual or a small group of workers would not.

“I’m trying to understand this, because it struck me as a quite amazing thing for the government to be saying that these were matters of public concern,” Kagan said, in reference to collective-bargaining issues. “Why should it matter if 50 employees get together and say we want higher wages and then, on the other hand, if employees get together and say, you know what, we think it’s right to elect a union so that the union can say that, it’s the exact same subjects and the exact same speech that’s going to be involved.”

Francisco said the scope of union representation made a constitutionally significant difference.

Throughout the argument, Gorsuch listened, often with one hand at his face. But he never asked a question. While there has been much speculation that the generally conservative justice, who joined the court last April, would likely vote with his fellow conservatives to overrule Abood, he has little in his record on public-employee union matters.

A decision in the case is expected by late June.

Photo: Mike Lohman, center, with the American Federation of Teachers, rallies among signs depicting U.S. Secretary of Education Betsy DeVos and businessman and conservative activist Charles Koch, as Lohman and others demonstrate in support of unions outside the U.S. Supreme Court the day the case was argued.

--Jacquelyn Martin/AP

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A version of this news article first appeared in The School Law Blog.