Legal Scholar: Sliver of Hope for Labor After Janus Hearing

The U.S. Supreme Court heard oral arguments Monday in Janus v. American Federation of State, County and Municipal Employees, the much-anticipated case in which plaintiffs are seeking to overturn the court’s 1977 Abood v. Detroit Board of Education decision.

That landmark ruling established the legality of public-employee unions to charge fair-share fees from members who have opted out of paying dues, and formed the basis for thousands of collective bargaining agreements for the nation’s 21 million government workers. The public-employee labor movement Abood ushered in is widely seen as a bulwark of Democratic Party power in the U.S. A decision is expected by the end of the court’s current term, in late June or early July.

Capital & Main spoke by phone with Seattle University School associate professor of law Charlotte Garden, who was in the court today, about her takeaways for Janus’ prospects.

Capital & Main: What is this case about?

Charlotte Garden: Janus is about whether it violates the First Amendment for a state and a union to agree that represented public-sector union members can be required to contribute to their share of the costs of union representation.

Most observers believe that the decision to outlaw public-sector union fair-share fees is a foregone conclusion. That’s because a similar case argued in 2016, Friedrichs v. California Teachers Association, deadlocked only due to the death of Justice Antonin Scalia, who was replaced by conservative Justice Neil Gorsuch. Did today’s arguments suggest any chance for a reprieve for labor?

Garden: I think they did. I wouldn’t go so far as to say I’m optimistic. I went into Friedrichs hopeful and left feeling completely hopeless; and I went into argument today feeling hopeless and left with maybe a sliver of hope. That is in part because Justice Gorsuch and Chief Justice Roberts really didn’t tip their hats. So it’s not entirely clear what they think. Now the way to bet is that they are going to strike down fair share fees. That’s what Justice Roberts voted for in Friedrichs and, with this issue becoming an increasingly partisan one, and given Justice Gorsuch’s votes in other cases so far, I think the way to bet is that he’ll also vote to strike down fair share fees.

The briefs, especially the union’s brief, were really drafted in a way that was designed to get at what are likely to be Justice Gorsuch’s concerns. So the union’s brief, for example, talked about originalism quite a bit and the history of First Amendment protection for public employees in a way that targeted Justice Gorsuch.

Was that the most striking difference for you from the Friedrichs arguments?

Garden: That was one difference. I think the other things were that the union and the State [of Illinois] just sharpened their arguments about why Abood, this 40-year-old precedent that the court is considering striking down in Janus, really is consistent with the way the court has treated public-sector employee speech in lots of other contexts.

There have been something like 79 amici curiae briefs filed on behalf of both sides of Janus. They argue everything from the disproportionate harm that overturning Abood will represent for women and persons of color, who greatly benefit from public-sector union membership, to the legal can of worms the court will be inviting in establishing a First Amendment precedent to challenge on far more trivial matters of government employment concerns. How much weight do those briefs traditionally carry with the court?

Garden: There’s a little bit of research about how influential amicus briefs are, and I think amicus briefs have become more prevalent, especially in high-profile cases over the last couple of decades. There is probably sort of a tipping point, and I’m not sure whether this case would have gone past this, where there’s a trade-off between the number of amicus briefs that are filed and the justices are sort of [being] deluged — and the ability of the briefs to round the case out and really put it in context.

But in this case there were a couple of amicus briefs that I think stand out as being [potentially] influential: One of them is the brief by Charles Freed and Robert Post. That was mentioned by name in oral arguments as a potential kind of compromise position. The other one is a brief by Eugene Volokh and William Baude, two prominent libertarian constitutional scholars, who weighed in on the side of the state and the union, saying that there isn’t really a substantial line of First Amendment case law establishing that there’s some kind of right to avoid compelled subsidization of speech.

Because there’s actually a conservative interest in preserving Abood, right?

Garden: Exactly. Think about all the ways that public-sector employment benefits are bound up with private companies, or are administered by private companies. If you’re a public sector employee and you’ve got some kind of pension, for example, it’s probably administered by a private corporation and a share of your pay every week goes towards that corporation’s fees to administer this fund for you. That corporation probably engages in all sorts of political spending that you might agree or disagree with, and yet nobody has ever really thought before that that might pose some sort of First Amendment problem. Whereas if the court overruled Abood, then I would expect to see more challenges to that sort of arrangement.

How radical an act of judicial activism would it represent to overturn Abood?

Garden: I think it would be remarkable for the court to turn away from not just this 40-year-old precedent, but also this long line of cases, including both older cases and more recent cases about the rights of public employers to manage their workforces as they see fit. So it’s one thing to overturn a stand-alone case, but that’s not what would happen here. It would really require some hard work, and maybe some kind of fancy footwork for the court to come up with a reason that agency fees are somehow different than all the of the ways that states currently restrict public employee speech.

Is that now it for Janus, or could a mass march on Washington influence the court?

Garden: I think there are probably some historical examples where public opinion has played a role in swaying the court. I’m not sure how likely this case is to be one of them. In part, that’s a reflection of the fact that its heart is a kind of complicated legal issue that only part of the public is interested in. It’s not like a Brown v. Board of Education or a gay marriage case, where lots of people are really focused on the issue. So I’m not so sure about that.

If you’re in a public-sector union or you’re represented by a public-sector union, now is the time to be talking with your coworkers — talk to them about why union membership is important. I’d add that if you care about the political gerrymandering cases [or] about equal access to the democratic process, then you should also care about this case.

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