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"You're basically arguing to do away with unions"

Janus v. AFSCME gets its day in court, as the justices fight about collective bargaining

Brian Young's picture
Feb 26, 2018

On Monday, lawyers from both sides sparred with judges over whether or not a public employee should be forced to pay for representation that he doesn’t agree with. Mark Janus, a 65 year old child support specialist from Illinois, and his lawyers from the National Right to Work Foundation argued that agency fees, or money that is paid to cover the cost of things like collective bargaining and defending a non-member, violate Janus’ First Amendment rights because they force him to support positions that he does not agree with.

Questioning began with Justice Ruth Bader-Ginsberg asking Janus’ lawyer Bill Messenger about the validity of other compulsory dues, such as student activity fees or association dues if the court was to decide in Janus favor. UCOMM recently asked a similar question about how the case could backfire on the National Right to Work Foundation. Justice Kagan followed that up by questioning the chaos that could ensue if 22 states became Right to Work and how it would affect the thousands of collective bargaining agreements (CBA) that are currently being enforced. Janus’ lawyers argued that clauses in a CBA that would require all workers to pay a fee or dues would expire in a few years and that this shouldn’t be used to hold up the case. Trump’s Solicitor General also noted that these contracts were negotiated during a time in which the court has been chipping away at these rights, so they should have prepared. "You're basically arguing to do away with unions," said Justice Sotomayor.

On the other side of the political aisle, Justice Kennedy showed great disdain for unions. "What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," said Kennedy, the justice who is often the swing vote in these cases. Justice Alito also argued that compelling someone to speak is more offensive than preventing them from speaking, arguing Janus’ point that the implicit endorsement of a position or candidate would make it appear that everyone within the union, including Janus support that position.

Justice Roberts, the Chief Justice of the court, took up the issue of how this ruling would affect unions. Through his questions, he seemed to minimize the impact that the case would have. He also expressed concern that any bargaining the public-sector union does will affect state budgets, thus making it a political issue. However, Roberts has also looked to narrow the scope of cases in the past in an effort to get decisions that are not 5-4. With this in mind, Justice Breyer offered a possible compromise where agency fees would be further restricted and only allowed to be used for negotiating wages and hours and defending someone in a grievance.

The big wild card in the case is Justice Gorsuch. He is the only one who did not vote in the 4-4 tie in the Friedrichs case. During the hearing, Gorsuch did not ask a single question, often sitting there with his head in his hand. While it is widely expected that Gorsuch, who was appointed by Trump, will break the tie in favor of Janus, he made every effort to not tip his hand on Monday.

Click here to read the full transcript.

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