Last month, the U.S. Supreme Court heard arguments in a case that could dramatically change the future of labor unions in this country and the political landscape in which they operate. However, the Supreme Court justice who is expected to be the deciding factor in this case— Justice Neil Gorsuch—asked no questions, leaving his opinion on the matter a mystery.

Janus v. American Federation of State, County, and Municipal Employees Council, 31 (AFSCME) focuses on an Illinois public employee’s claim that he should not be forced to pay agency fees to the union because it used the money for political speech. Arguments were heard on February 26.

A decision in the case is not expected until June. When the Court rules, you can expect to be inundated with briefing papers from every labor law firm in the nation. At IRI, we are tracking this case closely and we will be ready with critical analysis and thought leadership to help you make sense of the decision.

For now, our latest Intelligence Briefing focuses on the background of the case and a look at how the Court views the issue even without Gorsuch’s critical opinion.

Mark Janus, who is not a member of the union, argues the requirement violates his First Amendment right. Janus also argued that a holding in a case decided 40 years ago, Abood v. Detroit Board of Education should be clarified and extended to prohibit employees who are not union members but are covered by a collective bargaining agreement from being required to pay agency fees. The Abood holding was limited to only prohibiting employees covered by a collective bargaining agreement from paying the cost of contract negations because such contracts apply to all public workers whether they are union members or not.

The Court in Abood agreed that charging nonmember employees for the cost of political activity by their unions would violate their First Amendment rights, thereby opening the door for Janus’ argument. Accordingly, even the requirement that employees pay agency fees arguably violates employee rights because political issues are often involved in contract negotiations with government employers.

The stakes are high for unions in the case. If the Court rules in favor of Janus, unions could see a sharp decline in revenue when non-union members are no longer forced to pay fees. The ruling may also apply to union members who decide against paying dues to save money.

Eight justices who are on the Court today were also on the Court when it deadlocked on a similar case in 2016 in Friedrichs v. California Teachers Association. Justice Antonin Scalia, who was expected to be the deciding vote in Friedrichs, passed away before the Court ruled.

Those same eight justices from the Friedrichs Court also heard the Janus case but said nothing during arguments in Janus to indicate they had changed their stances. That likely leaves the deciding vote to Justice Gorsuch, who was appointed by President Trump last year.

Arguments focus on politics

The Court now arguably has a conservative majority by one vote with the addition of Justice Gorsuch. Accordingly, the politics of the Court are at play in this case as much as the underlying question of how agency fees should fund union political activities, if at all.

At the recent Janus oral argument, the more liberal justices focused on the broader impact of a ruling in favor of Janus, instead of probing the underlying substance of the case.

Justice Ruth Bader Ginsburg told Janus’ attorney, William Messenger, that ruling in his client’s favor would harm a union’s ability to effectively negotiate with a more powerful employer.

“But it drains it of resources that make it an equal partner in the marketing setting,” she said. “If you are right, that it’s not only the people who are opposed to the union but also union supporters who may think I’d rather keep the money in my own pocket, and then you’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces.”

Justice Elena Kagan raised concerns about the implications for public-sector contracts currently in place, noting that in 23 states, Puerto Rico and the District of Columbia, thousands of local municipalities would have contracts overturned for as many as 10 million people.

“The contract would have been different if the unions and the employers had known that this was going to be declared unconstitutional,” she said. “So to leave the contract as is, except for one particular bargained-for provision, is to do something that’s inequitable for the union.”

Messenger argued the scope of the “wide-scale First Amendment violations” was the driving reason the court should rule in favor of Janus.

Solicitor General Francisco told the court any disruption would be short-lived and end with new contracts in just a few years.

“But even if there were some reliance, I think it would be very short-lived, until the next negotiating session, where any new decisions from this Court would be factored in,” he said. “And I do agree that there also probably wouldn’t be much disruption at all since you would simply invalidate individual agency fee provisions.”

In a moment that seemed to capture the essence of the underlying concern raised by Janus, Justice Anthony Kennedy asked attorney David Fredrick, who represents AFSCME, whether ending the requirement of agency fees would impact a union’s political activities.

“I’m asking you whether or not, in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?” Kennedy asked.

“Yes, they will have less political influence,” Fredrick responded. “Isn’t that the end of this case?” Kennedy replied.

Read the full Intelligence Briefing