Oral Arguments Heard Today in Janus v. AFSCME...Now What?

Today, the United States Supreme Court heard oral arguments in Janus v. AFSCME.  Readers might remember this case as it is one I have highlighted in the past, given the increased attention this labor law case has received leading up to oral arguments before the Court.  As a refresher, the case deals with whether a state employee can be required to pay dues to a union (known as "agency fees"), even if that employee is not a part of the union, to cover the costs of a union representing all employees in the collective bargaining process.  For those wondering, these agency fees are normally more than half (and sometimes up to 100%) of actual union dues.  (That begs the question of whether these agency fees are actually union dues "in disguise").

How We Got Here

Let us start at the beginning so that readers can understand how we got to this point.

At the outset, I will note that a 1977 decision from the Supreme Court in Abood v. Detroit Board of Education found that theses mandatory fair share fees (also known as agency fees) were lawful.  However, support for these fees has slowly been chipped away at by the Court in recent years.

In 2012, in Knox v. SEIU, Local 1000, the Court noted that Abood's acceptance of a free rider argument as a justification for compelling nonmbers of a union to pay a portion of union dues was somewhat of an anomoly given that similar free rider arguments were typically insufficient to overcome a First Amendment objection.

The Court found in a 2014 case, Harris v. Quinn, no less than six reasons why "[t]he Abood Court's analysis is questionable."  In relevant part, the Court held that Abood "failed to appreciate the difficulty of distinguishing between collective bargaining and politics in the public sector", "did not foresee the practical problems that would face objecting nonmembers", and "wrongly assumed forced fees are necessary to exclusive representation."  While the Court did not overrule Abood (as it was not necessary to resolve the issues in Harris), it paved the way for a dismantling of these fees via another case soon thereafter.

That case, Friedrichs v. California Teachers Association, addressed whether it was lawful for a mandatory fee (referred to in that case as "fair share fees") to be taken from a non-union employee's paycheck and be paid to the employees' union for collective bargaining costs.  Despite oral arguments leading many to believe that the Court would rule in favor of Friedrichs and against unions, Justice Antonin Scalia died before a decision was handed down.  As a result, the Court deadlocked at a 4 - 4 vote (with all Republican appointed Justices voting against the mandatory fair share fees and all Democratic appointed Justices voting to uphold the mandatory fair share fees as previously found lawful in Abood).  Therefore, these fees were held to be lawful and unions were allowed to continue receiving them from non-union employees.

With that background, that now brings us to the present case.  Mark Janus, a child support specialist for the state of Illinois, was required to pay an agency fee to the American Federation of State, County and Municipal Employees ("AFSCME") to cover the union's costs in representing all employees (both those in the union and those that had not joined) in collective bargaining.  Janus, who was not a part of the union, objected to this monthly agency fee being deducted from his paycheck on the grounds that it was a violation of the First Amendment and compelled political speech as he contended these dues were actually being used to support political activity (as unions as inherently political).  He subsequently filed suit to contest these fees.  The Seventh Circuit Court of Appeals affirmed a district court ruling that these agency fees were lawful, based upon prior caselaw (namely Abood).  Janus appealed to the United States Supreme Court and the Court granted the petition for a writ of certiorari.

Oral Argument Recap

For those that did not follow how the arguments played out before the Court this morning, let me provide a bit of a recap.  Counsel for Janus argued that he (and similarly situated employees) that choose not to join a union should not be compelled to pay partial union fees (the agency fees).  In doing so, the argument was made that forcing employees to pay agency fees amounted to a violation of the First Amendment.  However, Justice Sotomayor suggested at one point during arguments that barring agency fees would ultimately "do away with unions".  (This has been a frequent criticism of ruling in favor of Janus...given the fact that barring agency fees would hinder the money a union collected and potentially severely hinder their long term funding and viability.  Of course, that is not even addressing the argument that Abood should stand as good caselaw and not be overruled).

On the other side, counsel arguing on behalf of the AFSCME pointed out that the Court should uphold the current law (allowing agency fees) and allow unions to continue collecting these fees from non-union employees based upon Abood holding this action to be lawful.  (For those wondering, Janus pays agency fees of approximately $45/month to the AFSCME.  This amount is determined by the union themselves, based upon an audit of their expenditures during the prior fiscal year.  As a result, this $45/month agency fee was approximately 78.06% of full union dues based upon the audit done by AFSCME).  However, Justice Kennedy was quick to point out that these agency fees amount to compelled subsidization of a private party (the unions) and in particular, a private party that constantly expresses political views.  As well, Justice Kennedy suggested that if 80% of the fees collected went to matters that were highly political in nature and only 20% went to wage and grievance wage negotiations, these fees would be an unlawful First Amendment violation as compelled political speech.  (In essence, if even 1% of these fees went to matters that were highly political in nature, I think there would be grounds to hold the fees are unconstitutional compelled political speech.

It is interesting to note that the one Justice, Justice Neil Gorsuch, that had not been on the bench when the Court heard Friedrichs v. California Teachers Association, remained silent during arguments and did not ask any questions.  Several legal scholars were closely watching Justice Gorsuch to see if he would tip his hand, given that he is expected to be the deciding vote on the matter.

Response to Janus v. AFSCME - From Both Sides

Now, irrespective of how arguments went (and the expected ruling in favor of Janus and against unions), there have been several groups that have already started to make their voices known against the expected decision.  Yesterday, The Orange County Register labeled the case as a threat to not only unions but to "all working people."  Today, an op-ed was posted in The Philadelphia Enquirer which assailed the case as an attack on unions and the economic prosperity that has resulted from unions being able to collect these agency fees.  As well, there have been protests/marches in cities across the country today as unions seek to make their opposition to the case known.  And perhaps unsurprisingly, Former Labor Secretary Tom Perez, Representatives Keith Ellison and Nancy Pelosi, and Senators Democratic Senators Kirsten Gillibrand, Elizabeth Warren, Kamala Harris (with these Senators widely expected to weigh running for President in 2020) tweeted their support of the AFSCME and against a ruling that they view would hamper unions.

Of course, that is not to say that others in the media and elsewhere have not argued that the Court should rule in favor of Janus.  This morning, USA Today published an op-ed from Mark Janus (yes, the petitioner in this case) in which Janus reiterated his position and belief that agency fees were unlawful.  The National Law Review published an article yesterday that suggested the Supreme Court had the opportunity to "decisively" affirm that workers have a right not to compel speech they disagree with (via agency fees).  As well, Illinois Governor Bruce Rauner (who has championed right to work zones in Illinois previously), was in Washington, D.C. to take in the arguments in person.

Looking Ahead

At this point, now that the Court has heard oral arguments, I would expect a ruling in the coming months (perhaps as late as June).  In the meantime, the Justices will conference on the matter, decide who will write the majority opinion, any concurring or dissenting opinions, and start working on drafts.  Until a decision is issued, there likely will be no further word from the Court.  While it is impossible to predict how the Court will rule, based upon the briefs I have read, the tenor of oral arguments, and the makeup of this Court, I would expect the Court to rule in favor of Janus, likely with a 5 - 4 decision.

For a transcript of the oral arguments before the Court:  https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1466_gebh.pdf