Supreme Court Poised To Deliver Blow To Public Sector Unions

After yesterday's oral argument, the Supreme Court seems poised to deal a major blow to public-sector unions.

Yesterday, the Supreme Court heard oral argument in a case that seems likely to deliver a blow to the power of public-sector unions such as AFCME and the SEIU, but one Justice who could hold the key vote in the case was silent:

WASHINGTON — A crucial voice was silent at Supreme Court arguments on Monday in a case that could deal a sharp blow to public unions. Justice Neil M. Gorsuch, who almost certainly holds the decisive vote, asked no questions, leaving some doubt, if only a glimmer, about whether he would join the court’s conservative majority to rule that forcing workers to support public unions violates the First Amendment.

Justice Gorsuch generally votes with the court’s conservatives, and he is likely to do so in this case. But his silence during the argument meant that observers knew no more about his thinking by the time it ended than when it had begun.

Two years ago, the court seemed poised to rule against public unions, but it deadlocked 4 to 4 after the death of Justice Antonin Scalia. Monday’s case, Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, presented the same legal issue. The only real difference was that Justice Gorsuch had taken Justice Scalia’s place.

Once again, the heated questioning during Monday’s arguments confirmed that the court was sharply divided along ideological lines.

The court’s more conservative members said that requiring workers who choose not to join public unions to pay for collective bargaining and similar activities is an affront to their right to free speech.

“When you compel somebody to speak, don’t you infringe that person’s dignity and conscience?” Justice Samuel A. Alito Jr. asked.

The court’s more liberal members said that states should have broad leeway in managing public workplaces. They added that a decision against the unions would require overruling a 40-year-old precedent, striking down more than 20 state laws, creating confusion about thousands of union contracts and disrupting the lives of millions of workers.

“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 said.

A decision overruling the precedent would conclude a decades-long political and legal campaign by conservative groups aimed at weakening public-sector unions. Those unions stand to lose fees from workers who object to the positions the unions take and from those who simply choose not to join while benefiting from the unions’ efforts on their behalf.

Justice Ruth Bader Ginsburg reflected on the consequences of ruling against the union in the case before the court. “It drains it of resources that make it an equal partner” with the government in negotiations, she told William L. Messenger, a lawyer for Mark Janus, an Illinois child support specialist who objected to positions taken by his union in negotiations. “And then you’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces.”

Near the end of the argument, Justice Sonia Sotomayor said the case represented an existential threat to the labor movement. “You’re basically arguing, ‘Do away with unions,’ ” she told Mr. Messenger.

The case was a challenge to an Illinois law that requires government workers who choose not to join unions to “pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.” More than 20 states have similar laws.

When the court revisited the issue in 2016, the Obama administration argued in favor of the unions. The Trump administration switched sides in the new case, prompting a comment from Justice Sotomayor to Solicitor General Noel J. Francisco.

“This is such a radical new position on your part,” she said.

Justice Kagan noted that the administration’s position could open the federal government to First Amendment challenges in various kinds of workplace disputes. “It strikes me as a very unusual position for the government to be taking,” Justice Kagan said, perhaps reflecting on her own experience in representing the government as solicitor general in the Obama administration.

Justice Anthony M. Kennedy, who is the court’s most ardent supporter of broad First Amendment rights, made clear that he had no patience with mandatory fees, calling them “compelled subsidization of a private party, a private party that expresses political views constantly.”

The lawyers in the case gave varying answers to questions about what would happen if the mandatory fees were eliminated. “When these kinds of obligations of financial support become voluntary, union membership goes down, union density rates go down, union resources go down,” said David L. Franklin, Illinois’s solicitor general, who argued in support of the union.

“When unions are deprived of agency fees, they tend to become more militant, more confrontational,” he added. “They go out in search of short-term gains that they can bring back to their members and say, ‘Stick with us.'”

Chief Justice John G. Roberts Jr. said there were arguments on the other side.

“The need to attract voluntary payments will make the unions more efficient, more effective, more attractive to a broader group of their employees,” the chief justice said.

SCOTUSBlog’s Amy Howe summarizes the oral argument:

Perhaps sensing that they could have a hard time picking up a fifth vote on the substance of the question before the court, the more liberal justices focused today on what they seemed to see as the ripple effects from a ruling for Janus. For example, Justice Ruth Bader Ginsburg told attorney William Messenger – who argued on Janus’ behalf – that a decision abolishing the agency fees would take away resources from public-sector unions, resulting in less efficient collective bargaining. The opponents of the fees wouldn’t be the only ones to stop paying them if they weren’t mandatory, she suggested; even some union supporters might stop paying them as well, simply to save money.

Justice Stephen Breyer had even bigger concerns on his mind. Messenger, he contended, was essentially asking the court to “apply a more modern framework to some older cases” like Abood. But if we overrule the court’s decision in Abood, Breyer asked, how many more old cases should the justices revisit? Should the court go all the way back to Marbury v. Madison, the landmark 1803 case that established the principle that federal courts have the power to review acts by Congress and the president?

Messenger resisted Breyer’s premise, telling him that the court’s decision in Abood was inconsistent with the cases that came both before and after it. “So this would not necessarily be solely applying a new doctrine to Abood but applying what the law was even prior to Abood,” Messenger argued.

Messenger pushed back even harder against the idea, suggested by Justice Elena Kagan, that the court should not overrule its decision in Abood because so many state and local governments, as well as unions, have relied on it for so long. If the court were to rule for Janus, she emphasized, 23 states plus Puerto Rico and the District of Columbia would all have laws overruled at once, and thousands of municipalities would have their contracts with as many as 10 million employees invalidated. When, she asked Messenger, have we ever done something like that?

Messenger tried to make lemonade out of lemons, telling Kagan that the collection of agency fees in 23 states, constituting “wide-scale First Amendment violations,” is precisely why the court should overrule Abood. Messenger also got a boost from U.S. solicitor general Noel Francisco, who appeared on behalf of the United States in support of Janus: Francisco assured Kagan that, because most of the collective bargaining agreements currently in force were negotiated “under the shadow” of the court’s earlier decisions questioning the constitutionality of agency fees, there is not “an enormous amount of reliance on the continued vitality of Abood.” And even if there were, he continued, it would be “short-lived” – lasting only until the next agreement is negotiated in a few years – so that a decision in Janus’ favor would not create much disruption.

When Illinois solicitor general David Franklin took his turn at the lectern, Kennedy – who is often regarded as a key vote in high-profile cases – left little doubt about where he stood. “What we are talking about here,” Kennedy said sternly, “is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.” Later on, Kennedy asked attorney David Frederick, who appeared on behalf of the union, whether, if the unions lose, they “will have less political influence.” When Frederick answered “yes,” Kennedy shot back, “Isn’t that the end of this case?”

Alito also seemed skeptical. “Are there any limitations,” he asked Franklin, “on the authority of the State of Illinois to compel its employees to say what the state wants them to say?”

Roberts chimed in, responding to Frederick’s suggestion that, under Janus’ theory, every employment-related issue that could come up in collective bargaining would become a constitutional issue. Roberts appeared to agree with Janus that, at a minimum, collective bargaining about wages can become a public-policy question. How, Roberts asked, does the negotiation of wages not affect the state budget? Don’t public unions engage in advocacy about the state budget, at least as far as it affects their wages?

As he often does, Breyer tried to broker a compromise, outlined in a “friend of the court” brief submitted by Charles Fried, who served as the U.S. solicitor general during the Reagan administration. Under the rule set out in a four-justice plurality in Lehnert v. Ferris Faculty Administration, Breyer suggested, nonmembers would only be required to cover the costs incurred by public-sector unions in carrying out the duties that they are obligated by state law to perform. For Breyer, this would mean costs related to wages, hours and working conditions, which “shouldn’t be hard to administer and should keep the things like lobbying and so forth out of it.” Franklin and Frederick were amenable to such a compromise, but – unfortunately for Breyer -the conservative justices did not express much interest.

None of the eight justices who were on the court in 2016, when it deadlocked on this same question, said anything during today’s oral argument that would indicate that they had changed their minds. If so, that would leave the decision in the hands of Gorsuch, who said nothing at all today. Before Gorsuch served on the U.S. Court of Appeals for the 10th Circuit, he was in private practice, where Frederick was one of his law partners. During his closing remarks, Frederick – who sometimes seemed to address Gorsuch directly – warned of an “untold specter of labor unrest throughout the country” if Janus prevails. We likely will have to wait until the end of June to find out whether that argument will prove effective, or whether Gorsuch will instead follow in the footsteps of Scalia, whom Gorsuch succeeded and who seemed to side with the challenger in Friedrichs, which was argued shortly before Scalia’s death.

Law Professor Ilya Shapiro meanwhile, calls the case a kind of “Groundhog Day” given the way it mirrored the argument that had been heard by the Court just a month before Justice Scalia died in February 2016:

We didn’t learn anything from this morning’s argument in Janus v. AFSCME, which asks whether state laws that compel the payment of “agency fees” by nonmembers of public-sector unions violate the First Amendment by forcing those workers to support policy positions they don’t like. None of the eight justices who heard the Friedrichs case on the same issue two years ago—which ended up 4-4 after Justice Antonin Scalia’s death—appeared to have changed their minds. The ninth, Justice Neil Gorsuch, didn’t ask a single question or otherwise show his hand. The whole exercise seemed like redundant pointlessness.


The smart money remains that Gorsuch will vote with Justices Roberts, Kennedy, Thomas (who also remained silent), and Alito in supporting Janus’s lawsuit. Of course, as one observer mentioned to me, Roberts was silent (update: nearly) in King v. Burwell, the 2015 Obamacare case, and we all know how that ended up. We’ll know in June.

While all the standard caveats regarding reading too much into what oral arguments in a court proceeding might or might not tell us about how a case might turn out apply here as much as they do in other cases, I tend to agree with Shapiro that Gorsuch is likely to side with his conservative brethren in this case. Assuming that he does, then the Court stands poised to deliver what could be a fairly serious blow to public-sector unions just as it did some 25 months ago when it heard oral argument in Friedrichs v. California Teacher’s Association, That case dealt with a schoolteacher in California who objected to the requirement that he pay union dues to the statewide teacher’s union due to his objection to the political positions the union took and the candidates that it supported in local, state, and Federal elections. Prior to that case, in  Harris v. Quinn, the Court had struck down an Illinois law that had the union that represented workers in hospitals and other care facilities.  However, the decision did not go as far as many observers had either hoped or feared and proceed to strike down a forty-year-old decision in which the Court essentially legalized the “closed shop” for public sector employees, meaning that an employee for a local, state, or Federal agency or department could be required to join a union and pay dues as a condition of employment. For years, critics of forced unionization sought to overturn that decision, but it has only been with the rise of the current largely conservative Supreme Court that they have been successful in their efforts. When Friedrichs was argued, it seemed as though those critics were on the verge of victory, but the death of Justice Scalia within a month after oral argument meant that the case was left with a 4-4 tie that allowed the Ninth Circuit opinion siding with the union to stand. Now, it once again appears that the Court is on the verge of handing the opponents of public-sector unions a major victory.

As I noted in both my preview post on this case and in my post in the wake of the oral argument in the Friedrichs case, regardless of how one feels about the merits of unions in general, the First Amendment issues raised by laws such as the one at issue in these types of cases are fairly and seem to call for only one conclusion. In both cases, the Plaintiffs are regular union members who simply happen to disagree with the idea that at least some portion of the dues they are compelled by law to pay in order to work are being used to advance causes and candidates that they disagree with. This is a called compelled speech, and it is a clear violation of the First Amendment due to the fact that the government is making membership in the union a mandatory condition of employment. Were this a private-sector job with a company that happened to have a closed-shop agreement with a union, there would be no First Amendment argument since employers are generally free to enter into such agreement and, within certain guidelines, set standards for employment including the requirement that an employeee be a union member. 1  As I’ve said before, it’s fairly well-settled law, that people cannot be forced to subsidize speech they disagree with, and as the court’s conservative Justices noted in their questioning, the argument that there can be a distinction between public advocacy and contract negotiation in a public employee context simply doesn’t make any sense. Given this, a public employee who is compelled to pay union dues as a condition of employment is being compelled to subsidize speech whether they want to or not. This would seem to be a clear violation of the First Amendment.

As Shapiro notes, we’re likely not to see an opinion in this case before the end of the Court’s term in June, and it’s likely that the opinions will be sharp on both sides of the argument. Until then, you can head over to SCOTUSblog’s information page for the case if you want to learn more or read any of the pleadings that have filed in the case while we wait for the decision.

1 One cavaet to this position is the possibility of a state or Federal law that requires employers to accept a closed-shop rule even if they don’t want to do so. Depending on how the Court decides this case, it’s possible that such laws could come under renewed legal scrutiny, but that argument is beyond the purview of the issues before the Court in this case and would have to be the subject of future litigation.

Here’s the transcript of yesterday’s argument:

Janus v. AFSCME Et Al by Doug Mataconis on Scribd

Photo via Associated Press

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. al-Ameda says:

    Near the end of the argument, Justice Sonia Sotomayor said the case represented an existential threat to the labor movement. “You’re basically arguing, ‘Do away with unions,’ ” she told Mr. Messenger.

    This, these kind of cases, is why Mitch McConnell effectively put the Supreme Court on hold for over a year. This really is more union-busting. The unionized workforce is already emasculated; this accelerates the decline.

  2. Matt says:

    @al-Ameda: Unions are one of the few things that can counter the billionaire boys club that the GOP relies on…

  3. Daryl's other brother Darryl says:

    But…unions have outgrown their usefulness because corporations are going to be falling all over themselves to make all their employees rich after receiving their Trump Tax Cut.

  4. Lit3Bolt says:

    I love the cosmic irony of the First Amendment being used in the cause of tyranny and feudalism.

  5. Ben Wolf says:

    There is no First Amendment issue. The Taft-Hartley Act mandated that employment contracts negotiated by unions would apply to all employees whether union members or not. This forced unions to demand compensation for their efforts from those who chose not to join and yet received the benefits. If free speech were the issue then we’d be looking at a repeal of the Act rathet than a highly specific attack on revenue to the unions.

    Also, three thousand corporations have sweetheart deals with states that allow them to put their employees’ payroll taxes in the corporate coffers and spend on all the political speech they like. If that isn’t a forced contribution then I don’t know what is.

  6. An Interested Party says:

    An interesting process we have here…first there is the Citizen’s United case which declares that limits cannot be placed on what corporations and unions, among other organizations, can spend on political campaigns, and now we have an effort to destroy unions…so who’s left to make all those campaign contributions? Funny how that works…