Messenger explained that the law works fine in the other states, the contracts would all expire in the next few years at most, and that in any event, maintaining an unconstitutional contract can’t be a valid reliance interest. Solicitor General Noel Francisco, siding with Janus, added that the contracts were negotiated “in the shadow of” two recent opinions, Knox v. SEIU and Harris v. Quinn, that threw serious doubt on Abood’s continuing validity.
Justice Sonia Sotomayor raised the distinction between the government acting as employer versus as sovereign—and that it has much more constitutional leeway in the former role—as well as impugning the solicitor general’s integrity for changing the government’s position in now‐three cases since Donald Trump became president.
On the other side, Justice Anthony Kennedy showed palpable disgust at the idea that the government would force people to pay for advocacy with which they disagreed, particularly given the reality that unions uniformly advocated for larger workforces, higher pay, bigger government, and other areas of obvious public concern. If the unions weren’t constitutionally required to maintain viewpoint neutrality, he implied, than how could the First Amendment countenance forced association and funding?
Justice Samuel Alito, the author of the Knox and Harris decisions, pointed out that the Constitution also doesn’t require that unions represent non-members—that it was state law that made unions workers’ exclusive representative in certain states. He also took umbrage at the argument, floated by Illinois and certain amici, that public‐sector workers don’t have First Amendment rights.
Justice Stephen Breyer floated a sort of compromise by offering that the agency fees should really only go to union expenses on negotiating wages and hours and on grievance procedures. In other words, Abood would be tightened rather than overturned to reduce First Amendment injury.
It’s unclear whether even Chief Justice John Roberts, who has tried mightily to issue narrow rulings with more than five justices in the majority, would make that deal. He minimized the harm to unions from a ruling in Janus’s favor—they would just need to become more efficient and effective to attract members, he said—and repeatedly expressed concern that even bargaining over wages affects state budgets and thus has public‐policy salience.
In the end, the smart money remains that Gorsuch will vote with Justices Roberts, Kennedy, Thomas (who also remained silent), and Alito in supporting Janus’s lawsuit.