Oral Argument Highlights from Janus v. AFSCME

Today, the Supreme Court heard oral arguments in Janus v. AFSCME, a First Amendment challenge to an Illinois statute requiring non-union members to pay mandatory union dues to the union deemed to represent the non-members' interests in collective bargaining activities. 

RNLA Advisory Council member Robert Alt described an irony at the heart of this compelled speech case:

What is surprising is the fact that Mark Janus is personally funding a cadre of high-priced lawyers with one goal: making sure that Mark loses his case. Why would he pay for the lawyers arguing against him? Because he has no choice. Mark is required to pay agency fees to the union, which are used for chargeable expenses like litigation, or he can be fired. And, of course, he is required to pay for political collective bargaining speech, or he can be fired. 

This is the real story of the money behind the Janus case—a story of forced contributions for political speech. But the story could have a happy ending. The Supreme Court will hear arguments today in a case that could vindicate the First Amendment rights of millions of Americans like Mark Janus. For Rebecca Friedrichs, for Mark Janus, and for all the workers who are being denied a voice and a choice, let’s hope that the second time is the charm.

Mr. Alt referenced Rebecca Friedrichs, the challenger in the 2016 case that raised the same issue and on which the Supreme Court deadlocked after Justice Scalia passed away a few weeks after oral arguments.  

RNLA member Ray LaJeunesse, Jr., summarized the history of compulsory union fees cases at the Supreme Court and gave some highlights of today's oral argument in a Federalist Society teleforum this afternoon:

• Ruling for Janus requires overturning Abood v. Detroit Board of Education, where Justice Powell concurred in the judgment but identified two flaws in the majority opinion that are at heart of Janus argument.
• Chicago Teachers Union v. Hudson required that employees must be given adequate advanced notice of fees and basis.
• Knox v. SEIU (2012) – SEIU local imposed special assessment to oppose two ballot measures after Hudson notice sent; Supreme Court held additional notice must be sent and no fee could be imposed on non-members without their consent; compulsory subsidies for private speech are subject to exacting scrutiny; free-rider arguments insufficient to overcome First Amendment objections.
• Harris v. Quinn (2014) – majority refused to extend Abood because analysis was questionable on 6 grounds.
• Friedrichs v. California Teachers Association (2016) – directly presented question of whether Abood should be overruled and it was expected to be before Justice Scalia passed away; same question presented as in Janus.
• In Citizens United, Court held it does not hesitate to overrule decisions offensive to the First Amendment.  
• Assuming monopoly bargaining is a compelling government interest, forced agency fees are not required to achieve that interest as such bargaining occurs at the federal level and in right to work states without forced fees.  Respondents argued that forced fees are not subject to heightened scrutiny.
• There were competing demonstrations outside the Supreme Court.  It was the longest line of attorneys Mr. LaJeunesse had ever seen to get in to a case - over 100 in line and he was number 77 in the overflow room.
• National Right to Work Legal Defense Foundation attorney Bill Messenger, arguing for Mr. Janus, was 42 seconds into his argument before Justice Ginsburg asked the first question, about mandatory student fees, bar fees, and private-sector unions.  Court in Harris distinguished all those scenarios (imposed for university’s interest in neutral forum for exchange of ideas, governmental regulation of practice of law, and private-sector bargaining is not political like public-sector bargaining).
• Justice Breyer asked about stare decisis, private-sector bargaining distinction, and Prof. Charles Fried's amicus brief that proposed compromise of different test for what is chargeable in public sector (charge only for union's statutory duties); Justice Alito pointed out compromise was not a solution because legislature could make union monopoly for purposes of lobbying, which California already has done.
• Solicitor General Noel Francisco argued that monopoly bargaining works without force fees at the federal government and postal service.  Justice Kagan asked how many times Trump Admin has switched its position at Supreme Court in this and other cases; he said 3 times (had faced question in other cases and appeared prepared for it).
• Illinois Solicitor General David Franklin was questioned closely by Justices Alito and Kennedy, both or whom clearly still ascribe to their opinion in Harris.  Justice Roberts asked whether it would make unions more responsive if they had to attract voluntary support (indicates his continued support for Harris opinion as well).  Justice Breyer brought up Prof. Fried's potential compromise again.
• Appellate lawyer David Frederick argued for the union and was again questioned closely by Justices Alito and Kennedy.  Justice Kennedy asked if this case would affect the political influence of unions if the Court rules for Janus, Frederick said “yes,” and Kennedy said, isn’t that the end of the case?  Justice Roberts asked how union negotiations over a collective bargaining agreement not affect state budget?  Mr. Frederick answered that they do.
• Mr. Frederick said there is real reliance here because there is a trade-off of agreeing not to strike in the collective bargaining agreement.  Mr. Messenger in rebuttal said that in other words, the scheme is racket protection, paying the union to ensure lack of uprising against the government and that grievance processing to enforce public policy according to the collective bargaining agreement is as much advocacy as making the agreement.
• Throughout the arguments, Justices Breyer and Kennedy were most active questioners.  Notably, Justice Gorsuch did not ask any questions.

The oral argument transcript is here.  While this case may be released at the end of the term like many other important cases are, Mr. LaJeunesse noted that opinions may have already been drafted and circulated for the Friedrichs case and the lines for all of the justices except Justice Gorsuch were already drawn in Harris, which might expedite the release of the decision.  This case will have serious implications for the free speech rights of public employees and their importance constitutional right against compelled speech.