The Supreme Court on Monday returned to union fees in a potential landmark case that labor groups say could threaten the future of public-sector unions.
The court was split on the same issue back in 2016, so it could now be up to new Justice Neil Gorsuch to break a tie. Court watchers are expecting him to rule against the union fees, as his predecessor, the late Justice Antonin Scalia, had also been expected to do.
But Gorsuch, who was the only member of the court to hear the issue for the first time, remained quiet during the hourlong arguments on Monday.
At issue are laws in Illinois and 22 other states that allow public-sector unions to collect a “fair-share fee” from employees for collective bargaining activities, regardless of whether those employees belong to the union.
Mark Janus, a child support specialist for the state of Illinois, argues that having to give up about $45 from each paycheck to the American Federation of State, County and Municipal Employees (AFSCME) Council 31 violates his First Amendment rights.
He says the union’s collective bargaining with government officials — in this case, Illinois Gov. Bruce Rauner (R) — over salaries and other benefits for government employees is inherently political.
That argument seemed to resonate with Justice Anthony Kennedy, often the swing vote on the court, and Chief Justice John Roberts, who suggested in a line of questioning that wages of public employees, the size of the workforce and overtime pay can all affect the amount of a state’s budget.
AFSCME argues it needs the “fair-share” funds to offset the significant costs they incur negotiating working conditions for all employees. State laws allowing unions to collect these fees are justified, the union says, to avoid a situation where nonunion members get a “free ride.”
But Kennedy asked the union’s attorney David Frederick if he prevails whether unions will have less political influence.
When Frederick admitted they would, Kennedy pounced.
“Isn’t that the end of this case?” he asked.
In 2014, the high court sidestepped whether to rule on the union fees. It then deadlocked 4-4 on the question in 2016.
To side with Janus, the court is being asked to overrule a principle it established in 1977 in a case known as Abood v. Detroit Board of Education, something members of the court’s more liberal wing appear adamantly against.
In Abood, the court upheld the constitutionality of “fair-share fees” paid to finance the collective-bargaining activities of unions that are obligated under state law to represent both union members and nonmembers. But the court said the money couldn’t fund political or ideological activities unrelated to collective bargaining.
Justice Elena Kagan said the court has never overruled a case where the reliance on precedent has been this great. She said overruling Abood would invalidate thousands of municipal contracts that cover millions of government workers.
“So property and contract rights, the statutes of many states and the livelihoods of millions of individuals affected all at once,” she said. “When have we ever done something like that?”
But William Messenger, who argued on behalf of Janus, said the court is relying on a precedent that’s unconstitutional.
“The prevalence of compulsory unionism in the states is a reason for reversing it,” he said.
A fiery moment came during arguments when Justice Sonia Sotomayor questioned Solicitor General Noel Francisco on the federal government’s change in position on the issue under President Trump.
Francisco was arguing in support of Janus for the court to overturn Abood, but the government argued in 2016 that the precedent should be upheld.
“This is such a radical new position on your part,” Sotomayor said. “Mr. General, by the way, how many times this term already have you flipped positions from prior administrations?”
Francisco said the government has revised its position in three cases so far.
In a statement following the arguments, AFSCME President Lee Saunders criticized the lawsuit, calling it a ruse funded by anti-union oligarchs to divide workers and make it harder for them to organize.
“Unions help make possible what would be impossible for individuals acting alone: living wages and a decent retirement, safe and welcoming public schools, affordable college and health care, and a voice in our democracy,” he said. “They’re attacking us because they see a strong labor movement as a threat to their wealth and power.”
But Janus’s attorney Jacob Huebert, director of litigation at the Liberty Justice Center, called the lawsuit one of the most important cases for workers’ rights in a generation.
“We’re hopeful that the Supreme Court will restore workers’ right to choose and state clearly that when you take a government job, you don’t have to check your First Amendment rights at the door,” he said in a statement. “The Supreme Court case Janus v. AFSCME seeks to end this injustice and restore workers’ rights to freedom of speech and association.”
Updated at 2:44 p.m.