Gorsuch Silent as High Court Readies Blow to Unions

WASHINGTON (CN) – His deciding vote is expected to deal a blow to public unions, but Justice Neil Gorsuch remained silent Monday as familiar idealogical lines divided the Supreme Court at oral arguments over union nonmembers paying fees.

On the conservative wing of the court, Justice Samuel Alito questioned how a law allowing unions to collect fees from nonmembers could possibly stand up to strict First Amendment scrutiny.

“When you compel someone to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?” Alito asked at arguments.

For the court’s more liberal justices, on the other hand, the prospect of an opt-in membership is problematic since the union will bargain collectively for all the workers regardless of their membership.

Such a shift would cost unions both the fees of workers who oppose it and those “union supporters who may think I’d rather keep the money in my own pocket,” Justice Ruth Bader Ginsburg said.

“And then,” Ginsburg continued, “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.”

The challenge at issue arose in Illinois where Mark Janus, a child-support specialist, objected to the more than $45 taken out of his paycheck each month by the American Federation of State, County and Municipal Employees  to cover his share of collective-bargaining expenses.

The AFSCME has charged such fees based on the Supreme Court’s 1977 opinion in Abood v. Detroit Board of Education, but it has failed at every turn to overcome Janus’ challenge.

Though the Abood opinion says unions can charge agency fees to cover expenses related to collective bargaining, an attorney for Janus argued Monday that any position a public union chooses to press in negotiations with the government raises a political question.

“It’s both scale and subject,” said William Messenger with the National Right to Work Legal Defense Foundation. “Here, the subjects are wages, health insurance — many ways in which the government operates which are very important both to the public fisc and to the operation and delivery of services.”

The Supreme Court had actually been poised to rule against unions in a similar challenge two years ago, but the unexpected death of Justice Antonin Scalia left the nine-member court without its tie-breaking vote.

Justice Gorsuch, who is often viewed as a successor to Scalia’s ideology, is expected to tilt the case against the AFSCME this term.

As Gorsuch stayed silent this morning, Justice Sonia Sotomayor noted that the court has historically granted the government broad discretion to regulate its employees’ speech.

“I’m sorry, I thought we had always recognized that the government as an employer had a compelling interest in regulating its employment decisions,” Sotomayor said. “We permit the government to fire people, deprive them of all money, not just a fair share fee, but deprive them of any income if they speak outside of the government’s approved policy message or messages generally.”

Responding to a question from Justice Ginsburg, U.S. Solicitor General Noel Francisco downplayed what fallout the court could expect by ruling for Janus.

“Respectfully, your honor,” Francisco said, “I don’t think anything would happen in the private sector for largely the reasons that Justice Alito identified in his Third Circuit opinion on the issue, and the D.C. Circuit identified in an opinion that I believe you were a part of — which held that in the private sector, there simply is no state action when it comes to collective-bargaining agreements.”

Defending the union meanwhile, Illinois Solicitor General David Franklin said the state has broad authority to regulate its employees’ speech, and that a ruling against the AFSCME would greatly depart from the court’s historic treatment of public employees’ free-speech rights. He said the state has a strong-enough interest in negotiating with a single, empowered union to overcome any of the employees’ free-speech concerns.

“The petitioner wants to vault over all of the break points in this court’s First Amendment law with respect to public employees and go straight to strict scrutiny,” Franklin said. “And the fact is this court has never applied strict scrutiny to a condition of public employment that was backed by a bona fide interest that the state has as an employer. Never, not once.”

Justice Anthony Kennedy prodded Franklin on the purpose of the state’s interest in negotiating with a single partner.

“It 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, for increasing taxes?” Kennedy asked. “That’s the interest the state has?”

Kennedy pressed on when Franklin denied that list of priorities represents the state’s interest in negotiating with a single union.

“Doesn’t it blink reality to deny that is what’s happening here,” Kennedy asked.

Abood has shaped state laws for decades. More than 20 states allow public unions to collect some type of agency fee.

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