Hmmm: Supreme Court to reopen debate on forced union “fees”

Will the fourth time be the charm? The Supreme Court has granted cert in a challenge to the forced payment of union dues by non-members, a dispute that the court has failed to resolve three times in the past. As one of the first actions the high court took on its return from recess, they agreed to hear arguments on Janus v AFSCME, and the new composition promises a resolution to the question — one way or another:

The Supreme Court agreed Thursday to hear a challenge to the so-called “fair share” fees public employee unions collect from non-members, posing a major threat to organized labor.

Unlike the past three times the court has considered similar cases, its five-member conservative majority appears poised to rule that workers opposed to union representation cannot be forced to pay for collective bargaining and other benefits.

The new case comes from Illinois and raises the same issues as a California case on which the court deadlocked, 4-4, following the death of conservative Justice Antonin Scalia in 2016.

The case provides an almost perfect parallel to Friedrichs v California Teachers Association, the first case decided — or really not — after the death of Justice Antonin Scalia in 2016. Two months afterward, the court split 4-4 on a challenge to a lower-court ruling that kept forced union “fees” deductions in place for non-union workers. The split was announced “per curiam,” with no opinion attached, and the split kept the lower court’s order in place without any precedential weight for other circuits.

The new case involves the same issues, giving the Supreme Court another shot at a conclusion:

The Illinois case involves Mark Janus, a state employee who says Illinois law violates his free speech rights by requiring him to pay fees subsidizing a union he doesn’t support, the American Federation of State, County and Municipal Employees. About half the states have similar laws covering so-called “fair share” fees that cover bargaining costs for non-members.

Janus is seeking to overturn a 1977 Supreme Court case, Abood v. Detroit Board of Education, that said public workers who refuse to join a union can still be required to pay for bargaining costs, as long as the fees don’t go toward political purposes. The arrangement was supposed to prevent non-members from “free riding,” since the union has a legal duty to represent all workers.

Forbes’ Brian Miller says it will all come down to Gorsuch — and that’s a bad sign for the unions:

In his eleven years on the federal bench, Justice Gorsuch has not had an occasion to consider the free speech rights of public employees. He has, however, taken a strong position against compelled association.

In 2013, then Judge Gorsuch authored a concurring opinion in Burwell v. Hobby Lobby when that case was before the Tenth Circuit. That case was like Janus in one important way. The owners of Hobby Lobby and others – like the Little Sisters of the Poor – were told by the Obama administration to fund access to contraceptives through their insurance policies.

Much like Mark Janus is arguing that compelled union dues require him to support activities he disagrees with, Hobby Lobby argued that the Obama administration compelled them to violate the teachings of their faith by providing financial support for activities they fundamentally opposed.

Justice Gorsuch sided with the owners of Hobby Lobby. In a concurring opinion, he justified his decision by saying, “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

That seems like a reach. There is a fundamental difference between religious belief and political ideology, one that Gorsuch intended to protect in his Hobby Lobby opinion. That doesn’t mean that Gorsuch would be likely to side with the unions — he’s probably much more inclined to go the other way — but the connection here seems pretty tenuous at best, and not all that predictive.

This does seem like a slam dunk to go 5-4, but … which way? Anthony Kennedy may have gone with the conservatives to get to the tie in Friedrichs, but who’s to say that wasn’t a strategy to force the issue to wait for a full nine-member panel for a precedential decision? Kennedy usually has an eye for stare decisis, and he’s not going to vote lightly to overturn Abood. On the other hand, Miller reminds us that it was Kennedy who sharply criticized the Abood fees during oral arguments in Friedrichs for making non-members “compelled riders” on the unions’ political agenda.

One thing we know for sure is that the court definitely wants to set precedent this time. The case will come up for argument in the winter, and it seems like a safe bet that the decision will probably come out near the end of the term as most controversial decisions do.