Members of the U.S. Supreme Court clashed sharply Monday over the right of public-sector workers to refuse to pay union fees, while the justice who will cast the deciding vote kept silent during an hour-long argument.

Justice Neil Gorsuch, President Donald Trump’s appointee who is serving his first full term, is poised to break the tie on a free-speech issue that split a shorthanded court two years ago. The case could affect 5 million workers in about two dozen states that allow public workers to be required to pay fees.





By all appearances, the case will divide his eight colleagues evenly. The court’s four Democratic appointees said during a fast-paced argument that a decision barring mandatory fees could have sweeping consequences.

“You’re basically arguing: Do away with unions,” Justice Sonia Sotomayor told a lawyer challenging the fees on behalf of Illinois child-support specialist Mark Janus.

The court’s conservatives, however, signaled they were poised to overturn a 1977 ruling that said states can let public-sector unions demand so-called agency fees from non-members, as long as the money covers representational work like collective bargaining and not ideological or political activities like lobbying.

Justice Anthony Kennedy suggested that unions were working together with public officials to produce “massive government” and higher taxes.

“Doesn’t it blink reality to deny that that’s what’s happening here?” Kennedy asked.

The clash is as much about the value of unions as it is about constitutional rights. Union leaders say the ultimate goal of those pressing the case is to undermine the clout of the labor movement. Hundreds of union supporters demonstrated outside the court in a morning rally.

Right-to-work groups contend that the 1977 ruling, known as Abood, relies on a false distinction between lobbying and collective bargaining. Backed by the Trump administration, those advocates say public-sector unions are engaging in political speech when they negotiate with the government. And the groups say workers have a constitutional right not to associate themselves with that speech.

Justice Samuel Alito said that “throughout history,” people have treated compelled speech as a more serious intrusion on individual rights than restrictions on speech. He mentioned the case of Sir Thomas More, the English statesman and thinker who became a Catholic martyr when he was beheaded in 1535 for refusing to acknowledge King Henry VIII as the head of the Church of England.

Illinois and union officials are defending the payments, which they call “fair-share fees.” They said that making the fees optional would let employees become “free riders” who benefit from collective bargaining without paying for it.

Justice Elena Kagan said that union contracts in dozens of states are premised on the use of mandatory fees and that labor representatives would have negotiated different terms if they knew they couldn’t collect that money. She said a ruling barring agency fees would have a dramatic impact.

“The livelihoods of millions of individuals affected all at once,” she said. “When have we ever done something like that?”

The court will rule by June in the case, Janus v. American Federation of State, County and Municipal Employees, Council 31, 16-1466.

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