Activists from both sides converge on the U.S. Supreme Court as the Mark Janus v. AFSCME is heard on Monday. | John Shinkle/POLITICO Gorsuch mum as Supreme Court rehears public employee union fight

The Supreme Court grappled Monday with a reprise of a case that could significantly weaken public employee unions, but Justice Neil Gorsuch added mystery to the proceedings by remaining silent and offering no hint of how he might vote.

Last year, the high court was widely expected to rule that states could no longer force public employees to pay fees for union representation — a ruling that could have significantly undercut the power of unions in one of the few sectors where they are still relatively common.


However, the unexpected death of Justice Antonin Scalia offered unions a reprieve of sorts, with the court issuing a brief, 4-4, ruling that left in place a 40-year-old precedent allowing such 'fair share' fees to cover matters like collective bargaining and grievance processes. The addition of Gorsuch was widely seen as likely to give plaintiffs the fifth vote they need to outlaw the non-member fees.

It appeared Gorsuch may have remained silent during the hour-long argument to try to dampen speculation about his likely decisive role in the pending ruling. He made little eye contact with the arguing attorneys and often rested his chin in his hands. During the following argument in another case, he was animated and repeatedly chimed in.

Aside from Gorsuch's silence, the most striking aspect of Monday's argument was Justice Anthony Kennedy's hostility to the unions' position. He repeatedly tore into lawyers for the State of Illinois and for a major union as they defended the "fair share" practice.

Morning Shift newsletter Get the latest on employment and immigration, every weekday morning — in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

As Illinois Attorney General David Franklin argued that the agency fees help states by bolstering the unions’ role as a negotiating partner, Kennedy ridiculed that claim, contending that what the unions are really about is wielding political power.

“It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, ... for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes?” Kennedy said almost angrily. “That's the interest the state has?....Doesn't it blink reality to deny that is what's happening here?"

Earlier in the argument, Kennedy framed the so-called agency fees as a clear First Amendment violation.

"What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," the frequent swing justice and Reagan appointee said.

Kennedy's comments were so strident that it sounded like he may have crafted a majority opinion striking down the fees in the case from last term, but was forced to put the opinion on ice when the court deadlocked after Scalia's death.

All four Democratic-appointed justices sounded sympathetic to the unions' stance.

The Democratic-appointed justices noted the Supreme Court has repeatedly ruled that governments acting as employers have broad authority to limit their employees’ speech. Union advocates have said these decisions undermine the notion that collective bargaining is a kind of speech that employees shouldn’t have to subsidize.

The Trump administration argued on behalf of those employees seeking to opt-out of the union and avoid paying the agency fees, but Justices Elena Kagan told Solicitor General Noel Francisco that the administration’s position that employees’ complaints amount to matters of political concern and debate could come back to haunt the federal government

“It struck me as a quite amazing thing,” she said, warning that it could limit the government’s ability to control speech by employees.

“This is such a radical new position on your part,” Justice Sonia Sotomayor added.

However, Republican appointed Justice Samuel Alito suggested forcing someone to pay for speech he doesn’t want is far more serious than telling employees they may not speak out on certain subjects because doing so could lead to confusion about government policies.

Alito even invoked the story of Sir Thomas More dramatized in the play, “A Man for All Seasons.” More was beheaded in 1535 because he refused to acknowledge King Henry VIII as the head of the Church of England.

“When you compel someone to speak, don’t you offend that person’s dignity and honor in a way that you don’t when you restrict a person’s speech?” Alito asked.

“Agency fees are not a ‘Man for All Seasons’ scenario, by any stretch,” Illinois Solicitor General David Franklin replied.

However, advocates pressing to maintain the agency fees painted a grim picture of their own if the high court rules them unconstitutional. An attorney for the government-employees’ union AFSCME, David Frederick warned that the court could unleash chaos if it overturned its 1977 precedent allowing the mandatory union fees, Abood v. Detroit Board of Education.

“If you overrule Abood, you could raise an untold specter of union strife across the country,” Frederick said, predicting that unions covering fewer employees would be pitted against larger numbers of unrepresented employees, breeding resentment.

Unions “tend to become more militant and more confrontational” as they make extreme demands to try to hold onto members, Franklin said.

Franklin also warned that ruling the fees unconstitutional will ultimately discourage even union supporters from paying their dues, because they know the union will represent them regardless.

"Over the long term…this free rider problem becomes epidemic and contagious,” he said.

However, William Messenger, an attorney for the Illinois state child support worker who brought the legal challenge, told the justice that the government has no business digging into why employees choose to opt out of the union and its fees.

“It's immaterial why an individual does not wish to support union advocacy,” Messenger said. “The First Amendment prohibits the government from probing into individuals' subjective belief."

As the pro-union lawyers argued that union negotiations should not be considered matters of public concern that automatically amount to political debate, the conservative justices often expressed disbelief.

Alito asked about a scenario where a union’s request for a 5 percent raise could “push a city to the brink of bankruptcy.”

“That particular hypothetical, in fact, is an unfair smearing of the collective bargaining process,” Frederick snapped back in an unusually caustic retort.

Several of the court's liberals suggested that eliminating the ability to require public employees to pay for collective bargaining might undermine similar rules for some private employers, particularly in heavily-regulated industries where there are ties between labor costs and government actions.

"You're basically arguing to do away with unions," Sotomayor said to Messenger.

Some of the liberal justices' comments seemed aimed past the current dispute, looking towards future cases where unions may try to argue that if collective bargaining is so imbued with speech, states and localities should be required to recognize unions among their employees. The law doesn't currently require such negotiations if states pass laws against it.

Chief Justice John Roberts made some skeptical comments about the unions' stance, but was somewhat more reserved than Kennedy and Alito. Justice Clarence Thomas asked no questions, as is his custom.

One lighter moment came as Roberts asked Frederick whether demands for higher wages for employees must have some impact on state or local coffers.

“Of course, most public servants are underpaid, I will stipulate to that before this body,” Frederick said, drawing some laughter from the audience and a wry smile from Roberts.

The court is expected to rule on the issue by the end of June.

After the session, American Federation of Teachers President Randi Weingarten seized on the claims that all union organizing amounts to free speech.

"They have this new view on unions and free speech. That there is nothing that a union can do that doesn't implicate the First Amendment," Weingarten said.

However, groups who've repeatedly moved to rein in the power of unions seemed confident after Monday's session.

"This is an important day for free speech... Everything that government unions do is political," said National Right to Work Foundation President Mark Mix, pointing to union members demonstrating outside the court "Nothing in this case stops any one of those workers from supporting their union, paying to their union," he stressed.

A ruling against the unions would be a serious blow not just to unions' membership rolls, but to the Democratic Party in a competitive election cycle. Government unions account for about 6 percent of the money spent on Democratic candidates in federal elections — and that doesn't include significant in-kind contributions like phone banks and canvassing.