No Minds Changed in Union Fees Case

      If Supreme Court arguments were scored in the manner of high school debate tournaments, liberal justices would be credited with a hands-down win in last week's showdown on the fees that public employee unions charge to non-members for representing them in labor negotiations and workplace issues.
      Through active questioning from the bench during the hour-long session on Janus v. AFSCME [Feb. 26], the liberal justices demonstrated the disquieting consequences of the conservatives' apparent determination to overrule a 40-year-old precedent important to the financing of public employee unions. That decision, Abood v. Detroit Board of Education (1977), allows public employee unions, if permitted by state law, to charge non-members their "fair share" of the union's costs in representing members and non-members alike on work-related matters.
      The liberal justices showed that overruling Abood would cast doubt on analogous decisions in several other areas and could unsettle labor contracts negotiated by governments in 23 states and hundreds of municipalities. And they also laid bare the real purpose behind the case: not so much to vindicate the claimed free speech interests of the dissident Illinois state employee Mark Janus, but to diminish the resources for public employee unions and reduce their political influence.
      The conservative justices were somewhat restrained during the argument, possibly confident of the outcome. The Court divided 4-4 two years ago on whether to overrule Abood, with one seat vacant after Justice Antonin Scalia's death. The individual votes were not announced, but the justices undoubtedly split along conservative-liberal lines. Now with the conservative justice Neil Gorsuch filling the ninth seat, the conservatives perhaps saw no need to make their case from the bench.
      The senior liberal justice Ruth Bader Ginsburg opened the questioning by asking Janus's lawyer, William Messenger of the anti-union National Right to Work Foundation, about the potential domino effect of overruling Abood. "If you are right," Ginsburg asked, "what about three things...?" She listed student activity fees, mandatory bar association payments, and agency shop fees in the private sector: all of them upheld in Supreme Court precedents.
      Messenger's answer served to underline the hoped-for judicial activism at the heart of the case. The government had legitimate interests in requiring all students to pay into an activity fund and in requiring all lawyers to contribute to the regulation of the legal profession. He left unspoken the implicit argument to dismiss as insubstantial the government's interests in having strong unions as negotiating partners to promote employee morale and labor-management relations.
      Sotomayor reminded him on the point: "I'm sorry," she said, interrupting. "I thought that we had always recognized that the government as employer had a compelling interest in regulating its employment decisions."
      Kagan joined next to note that 23 states and "thousands" of municipalities have negotiated contracts with labor employee unions under the Abood framework. "I don't think that we have ever overruled a case where reliance interests are remotely as strong as they are here," Justice Elena Kagan told Messenger. "The contracts will survive," Messenger reassured Kagan, hardly reassuring from a fierce critic of unions after mischaracterizing the issue one sentence earlier as all about "compulsory unionism."
      To be clear, Janus claims a free-speech issue on the ground that the union's negotiations with the government employer are all matters of public concern, not private employer-employee relations. Kagan got the U.S. solicitor general, Noel Francisco, to agree to that proposition even though it could bedevil the federal government and all other government employers in disciplining public employees.
      The free-speech argument is debunked by no less a First Amendment expert than UCLA law professor Eugene Volokh. "There is no First Amendment right not to subsidize speech one disagrees with," Volokh wrote in a friend-of-the-court brief on the union's side joined by another politically conservative academic, the University of Chicago law professor William Baude. They opined that Abood actually went too far by giving dissident non-union members the right to opt out of paying for unions' political activities beyond the collective bargaining role.
      However tenuous the First Amendment arguments, the conservative justices were all in. "When you compel somebody to speak, don't you infringe that person's dignity and conscience?" Justice Samuel A. Alito Jr. asked of the Illinois solicitor general, David Franklin, defending the law. Franklin answered firmly. "What we're talking about here is a compelled payment of a fee," Franklin said. "So it's one step removed from compelled speech."
      Other conservatives seemed to be lying low. Chief Justice John G. Roberts Jr. had only a few question; Gorsuch, with the decisive vote, had none at all. And it fell to the ordinarily mild-mannered justice Anthony M. Kennedy to make the bluntest attack on public unions. He mocked Franklin's argument by suggesting that the government merely wanted the union to "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?" Note to Kennedy: GM and UAW agree on the need for strong automobile industry.
      By the hour's end, no minds had been changed: Justice Stephen G. Breyer's plaintive plea for a compromise of some sort went uncommented on by the conservatives. Outside, anti-union demonstrators carried placards pleading, "Unrig the system." In this case, however, the fix is in: decision in June, but no suspense about the outcome.