Vice President, Labor Policy, U.S. Chamber of Commerce
March 06, 2018
The United States Supreme Court on February 26 heard oral arguments in one of the most closely-watched cases of this term, Janus v. American Federation of State, County, and Municipal Employees Council 31. The issue in Janus involves the payment of so-called “agency fees” to a government union by an employee who does not wish to belong to it, and this is not the first time the Court has considered it.
Indeed, in January 2016 the Court heard arguments in Friedrichs v. California Teachers Association, a very similar case challenging mandatory agency fees. Several justices in that case appeared skeptical of the union’s position, and observers of labor policy were relatively confident that the Court would overturn its 1977 decision in Abood v. Detroit Board of Education, in which the Court upheld the charging of agency fees for public sector employees.
However, in February 2016, just one month after the Friedrichs case was argued, Justice Antonin Scalia passed away. He was widely considered a reliable vote against mandatory agency fees, and his death left the Court equally divided in the case.
It did not take long for another case—Janus—challenging agency fees to make its way to the Supreme Court, though. It involved an Illinois child support specialist named Mark Janus, who is a public employee who sued AFSCME 31 over the collection of agency fees even though he did not belong to the union. After going through the judicial system, in September 2017, the Supreme Court agreed to reconsider the issue and hear the case.
The argument in Janus is practically identical to Friedrichsand relatively simple: Government employees who do not wish to belong to a union maintain that collective bargaining in the public sector is inherently political because the union is negotiating with the government. As a result, public sector collective bargaining can have a significant impact on other government policies, such as how much to tax citizens or how much to spend on other needs. Thus, forcing employees to pay agency fees to the union violates their First Amendment rights because they are supporting political speech against their will.
According to reports from the oral arguments, the Court’s more conservative Justices once again appeared skeptical of the union’s position, with Anthony Kennedy’s hostility toward the State of Illinois’ and AFSCME’s arguments being one of the most striking aspects of the hearing.
Given that eight of the nine Justices already voted one way or the other on the same issue in Friederichs, most observers are anticipating the vote of Justice Neil Gorsuch, who replaced Scalia, to be the decisive one. He reportedly stayed silent during the hearing, leaving little hint as to which way he might vote.
As always, predicting the outcome of a Supreme Court case is difficult, though it seems likely a safe to bet the vote will be 5-4 either way. One hopes that the Court will come down on the side of worker freedom and finally end the practice of forcing public employees to support unions whose political stances do not represent theirs.