This morning, the United States Supreme Court heard oral arguments in Janus v. AFSCME, a case that could have a major impact on the the nation’s public sector unions, including the American Federation of Teachers and National Education Association.
The core question in the case is whether public employees covered by collective bargaining agreements can be required to pay “agency fees” to a union that they refuse to join. The petitioners argue that mandatory agency fee laws, currently on the books in 21 states, violate the First Amendment rights of non-member public employees who are compelled to support unions even though they disagree with their political positions.
It’s a nearly identical argument to the one made by plaintiffs in Friedrichs v. California Teachers Association, a case heard by the Supreme Court in 2016, which resulted in a rare 4-4 split decision following the sudden death of Justice Antonin Scalia halfway through the term. The split decision meant that a lower court’s ruling against Friedrichs was upheld, mandatory agency fee laws survived, and public sector unions dodged a bullet.
But court observers believe that the unions won’t be as lucky this time around. It is widely expected that Justice Neil Gorsuch, who was appointed to replace Scalia on the bench last year, will join the court’s conservative majority to strike down mandatory agency laws in the current case.
Nevertheless, Gorsuch gave little indication of where he stood on the issues when the Supreme Court heard oral arguments in Janus v. AFSCME this morning. He remained silent throughout the hearing, even as his colleagues aggressively questioned attorneys on both sides of the case.
The court’s liberal members, particularly Justices Ginsberg and Sotomayor, questioned how mandatory agency fees were different from compulsory bar association payments or student activities fees at colleges. Meanwhile, Justice Alito, one of the most conservative voices on the court, hammered attorneys for the respondents with questions on First Amendment protections.
“When I read your brief I saw something I thought I would never see in a brief filed by public employee union, and that is the argument that the original meaning of the Constitution is that public employees have no free speech rights,” Alito said to David C. Frederick, who represents AFSCME in the case. “Where do you want us to go with that?”
But perhaps the most eye-opening comments this morning came from Justice Kennedy, who has emerged as the crucial swing vote in several high-profile Supreme Court cases over the past decade. Kennedy made it clear he believed mandatory agency fee laws were unconstitutional and at one point brusquely told Illinois Solicitor General David L. Franklin, lead attorney for the respondents: “It seems to me that your argument doesn’t have much weight.”
We’ll have to wait to see how where the other Justices land, as the court won’t issue its decision until later this spring. In the meantime, you can read the transcript from from today’s arguments below, or read my previous piece on Janus v. AFSCME, which includes more background on the case, by clicking HERE.