Justice Kennedy Takes Aim at Public Sector Unions in Janus Oral Arguments

The U.S. Supreme Court heard oral arguments yesterday in a case that could substantially undercut the legal privileges currently enjoyed by public sector unions nationwide. If the comments made by frequent swing vote Justice Anthony Kennedy are any indication, the union side has cause for alarm.

At issue in Janus v. American Federation of State, County, and Municipal Employees, Council 31, is whether it is constitutional for state and local governments to require their workers to pay union fees as a condition of employment, even when those workers have declined to join the union.

Illinois Solicitor General David Franklin, who was at the lectern defending the state's compulsory fee scheme, told the Court that "the state has a much freer hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign, and...that freer hand includes broad authority to put conditions on employees' speech."

Unfortunately for Franklin, that argument apparently did not sit well with Justice Kennedy, who often casts the decisive vote in closely divided cases. "What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," Kennedy retorted. A little bit later, Kennedy told Franklin, "it seems to me your argument doesn't have much weight."

David Frederick, the respected Washington lawyer who is representing the AFSCME, also butted heads with the justice. According to Frederick, "states, as part of our sovereign system, have the authority and the prerogative to set up a collective bargaining system in which they mandate that the union is going to represent minority interests." That state authority, he stressed, includes the power to require non-members to pay a fee to the union that supports collective bargaining activities that benefit members and non-members alike.

But Justice Kennedy seemed to dismiss that point too. The union's position, Kennedy told Frederick, involved "mandat[ing] people that object to certain union policies to pay for the implementation of those policies against their First Amendment interests." In other words, Kennedy seemed to suggest the mandatory fees at issue here are unconstitutional.

That is the very argument made by Mark Janus, the Illinois public sector worker at the heart of this case. Janus objects to being forced to contribute to the coffers of a union that he has refused to join, insisting that such compulsion violates his First Amendment rights because it makes him subsidize the union's political speech and activity. Judging by the oral arguments, Justice Kennedy seemed inclined to rule in Janus's favor.

If any of the above sounds familiar, that's because the Supreme Court grappled with a nearly identical case two years ago called Friedrichs v. California Teachers Association. Most court-watchers at the time expected the union to lose that dispute and for the mandatory fee scheme to be declared unconstitutional, but after the sudden death of Justice Antonin Scalia, the Court was unable to reach a majority and deadlocked 4–4. Janus is effectively a Friedrichs do-over.

So in a sense, the only question that really mattered yesterday was whether Scalia's replacement, Justice Neil Gorsuch, will come down on the side of Janus or the union. But we're going to have to wait a few months longer to find out the answer. Justice Gorsuch did not speak a single word during the oral arguments.

Related: "3 Supreme Court Cases to Watch This Month."