Janus v. Afscme Oral Arguments at the Supreme Court: the Dog That Didn’t Bark

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.
February 26, 2018 • Commentary
This article appeared in the Washington Examiner on February 26, 2018.

We didn’t learn anything from this morning’s argument in Janus v. American Federation of State, County and Municipal Employees, which asks whether state laws that compel the payment of “agency fees” by nonmembers of public‐​sector unions violate the First Amendment by forcing those workers to support policy positions they don’t like. None of the eight justices who heard the Friedrichs v. California Teachers Association case on the same issue two years ago—which ended up 4–4 after Justice Antonin Scalia’s death—appeared to have changed their minds. The ninth, Justice Neil Gorsuch, didn’t ask a single question or otherwise show his hand.

Justice Ruth Bader Ginsburg opened the questioning by asking about the validity of student activity fees and bar dues if Illinois state employee Mark Janus were to prevail, as well as how such a ruling would affect private‐​sector unions. Janus’s lawyer, Bill Messenger of the National Right to Work Legal Defense Foundation, responded that different state interests were at play there, and that there’s no state action in the private sector and so no First Amendment harm. (Justice Scalia, in a 25‐​year‐​old case called Lehnert v. Ferris Faculty Association, made the same point, which is why he was considered the swing vote in Friedrichs—though he showed himself to unambiguously be on Rebecca Friedrichs’s side during oral argument in that case.)

Justice Elena Kagan expressed concern about the practical impact of a ruling that struck down the laws of 22 states that allow agency fees, which would also affect thousands of collectively bargained contracts. As expected, much of the questioning focused on stare decisis—the weight of the 40‐​year‐​old precedent set in Abood v. Detroit Board of Education that needs to be overturned for Janus to win—an issue that Cato’s amicus brief focused on.

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.

About the Author
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.