Justice Kennedy Takes Aim at Public Sector Unions in Janus Oral Arguments

[EasyAce]

"It seems to me your argument doesn't have much weight."
By Damon Root
http://reason.com/blog/2018/02/27/justice-kennedy-takes-aim-at-public-sect

The U.S. Supreme Court heard oral arguments yesterday in a case that could substantially undercut the legal privileges currently enjoyed by public sector unions nationwide. If the comments made by frequent swing vote Justice Anthony Kennedy are any indication, the union side has cause for alarm.

At issue in Janus v. American Federation of State, County, and Municipal Employees, Council 31, is whether it is constitutional for state and local governments to require their workers to pay union fees as a condition of employment, even when those workers have declined to join the union.

Illinois Solicitor General David Franklin, who was at the lectern defending the state's compulsory fee scheme, told the Court that "the state has a much freer hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign, and...that freer hand includes broad authority to put conditions on employees' speech."

Unfortunately for Franklin, that argument apparently did not sit well with Justice Kennedy, who often casts the decisive vote in closely divided cases. "What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," Kennedy retorted. A little bit later, Kennedy told Franklin, "it seems to me your argument doesn't have much weight" . . .

. . . If any of the above sounds familiar, that's because the Supreme Court grappled with a nearly identical case two years ago called Friedrichs v. California Teachers Association. Most court-watchers at the time expected the union to lose that dispute and for the mandatory fee scheme to be declared unconstitutional, but after the sudden death of Justice Antonin Scalia, the Court was unable to reach a majority and deadlocked 4–4. Janus is effectively a Friedrichs do-over.

So in a sense, the only question that really mattered yesterday was whether Scalia's replacement, Justice Neil Gorsuch, will come down on the side of Janus or the union. But we're going to have to wait a few months longer to find out the answer. Justice Gorsuch did not speak a single word during the oral arguments.