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Justice Gorsuch quiet during oral arguments of forced union dues case

February 27, 2018 GMT

Mark Janus is but a single person, a child support specialist for the Illinois Department of Healthcare and Family Services in Springfield. But his lawsuit challenging forced union dues against AFSCME Council 31 could have ramifications that impact more than 5 million public employees nationwide.

Janus, 65, appeared with his attorneys Monday before the U.S. Supreme Court to argue their case that forced union dues are a violation of the First Amendment of the U.S. Constitution.

In Janus vs. AFSCME, the 10-year Illinois state worker is challenging a 41-year-old legal precedent that requires him to contribute part of his paycheck – $45 a month – to a union he decided not to join and one he disagrees with politically.

While legal experts have expected the court’s newest member, conservative Justice Neil Gorsuch, to side with Janus, he gave no clues during oral arguments. Gorsuch holds the key vote among a split court, but he didn’t make any comments or ask any questions Monday.

“It was hard to know what he would do and, of course, we have no further insight into what he was thinking so it’s just a matter now of waiting and seeing like it’s always been,” the Liberty Justice Center’s Jacob Huebert, one of the attorneys representing Janus, said on the steps outside the Supreme Court building after the hearing concluded.

In a very similar case in 2016, the Supreme Court deadlocked, 4-4. In that split decision, Friedrichs vs. the California Teachers Association, justices appeared ready to overturn the four-decades-old law and ban states from requiring a public employee to pay so-called “fair share” fees to unions who represent them even if the employee doesn’t support the union or want its collective bargaining help. But Conservative Justice Antonin Scalia died before he could cast the deciding vote. Gorsuch, who holds the tie-breaking fifth vote, has since replaced Scalia.

Two years after Friedrichs, Janus and his attorneys from the Liberty Justice Center and the National Right to Work Legal Defense Foundation were back before the court Monday.

Union advocates say the dues Janus pays to AFSCME are his “fair share” for the collective bargaining on wages, benefits and workplace conditions that the union does on his behalf. Janus counters that, regardless the amount he is forced to pay, collective bargaining itself is a form of politicking that he shouldn’t have to financially support.

For example, Janus has said, AFSCME and Illinois Gov. Bruce Rauner are engaged in a years-long contract battle over salary and benefits. Despite Illinois’ dire fiscal condition and highest-in-the nation local and state tax burden, AFSCME is demanding wage hikes and other benefits that would cost taxpayers more than $3 billion over four years, he says.

Janus said his money shouldn’t go to support that because he doesn’t believe in it.

Union advocates argue that Janus’ case and others like it are nothing more than an effort to reduce the influence of public labor unions. If public employees don’t have to pay the bargaining fee, many of them won’t, the advocates argue, and that would diminish unions’ revenue and therefore its power.

“We have the facts and the law on our side in the Janus case. The other side isn’t making a legal argument at all — they’re just launching a political attack,” Lee Saunders, president of the American Federation of State, County and Municipal Employees (AFSCME), said in a statement Monday to union members. “They are motivated only by hostility toward public service workers like you, who’ve dedicated your lives to strengthening your communities. They want to see your pay cut, your benefits reversed, and your voice on the job silenced.”

Janus, who says he is not anti-union, counters that unions should have to prove their value to employees and earn their membership. Competitive Enterprise Institute’s Trey Kovacs agreed with Janus.

“They simply don’t want to work hard to provide services that employees want,” Kovacs said. “They’d just rather have the gravy train keep going.”

If the Supreme Court decides in favor of Janus, about five million public employees from 24 U.S. states without right-to-work laws, will be able to decide for themselves whether they want to pay union fees. Illinois, Ohio, Pennsylvania and Minnesota are among those that would be impacted.

Inside the courtroom Monday, justices focused on a couple of key issues, though it didn’t sound as if any of the eight who heard arguments in the deadlocked Friedrichs’ case had changed their minds.

Justice Elena Kagan, from the court’s liberal wing, asked whether overturning a 40-year precedent would have a sudden and drastic impact on governments’ and unions “reliance” on it. State and local governments and public employee unions negotiated contracts based on current law allowing these mandatory union fees.

“Thousands of municipalities would have their contracts voided,” Kagan said. “... So property and contract rights, the statutes of many states and the livelihoods of millions of individuals affected all at once. When have we ever done something like that? What would be the justification for doing something like that?”

“Reliance is an important consideration,” Kagan added.

“Reliance that is constitutional,” National Right to Work Legal Defense Foundation attorney William Messenger, who also represents Janus, countered. “Reliance on an illegal practice? No.” Messenger also said the contracts will survive because most are only for one to four years and will be renegotiated in the near future.

The Buckeye Institute President Robert Alt said after the hearing that Justice Anthony Kennedy, often a swing vote on the court but who sided with Friedrichs two years ago, asked tough questions of union attorneys on Monday.

“Given how frequently Justice Kennedy is in the majority, his questions have to be a cause of concern for those seeking to continue the practice of forcing public servants to pay for union speech with which they may disagree,” Alt said in a statement.

Protesters began lining up hours before the 10 a.m. hearing. Union backers carried signs saying “America Needs Union Jobs” and “We are Union Proud” and chanted “Union power” intermittently.

Janus supporters carried signs saying “Stand with Mark,” “Stand with Workers” and “#MyJobMyChoice.”

Among the Janus supporters who spoke to media before the hearing was Rebecca Friedrichs of prior union dues case. Friedrichs said she was bullied by union leaders even when she was a union representative.

“And all they did was drown me out,” Friedrichs said while a heckler yelled at her, saying she’s not a real worker. “Like that, that’s all they did. It was yelling and screaming and angry, and they wouldn’t listen to my fellow workers and me.”

Union supporters chanted “union strong” and criticized other speakers, including other public employees in support of Janus, saying they should give their benefits back.

Lily Eskelsen García, president of the National Education Association, said the system is rigged in favor of the rich.

“The corporate special interests behind this case are dead set on eliminating the rights and freedoms of working people to organize, to negotiate collectively and to have any voice in working to better their lives,” García said. “This is a blatant slap in the face of educators, nurses, firefighters, police officers and all public servants who make our communities strong and safe.”

The arguments concluded late Monday morning. Now comes the months-long wait for a decision that could change public labor law across the country. Justices are expected to render their decision this summer.

For his part, Janus said he is happy the case is now in the Supreme Court’s hands.

“I’m feeling a little bit overwhelmed, you know, because of the crowds. But I’m also glad we’ve been able to make our argument and that hopefully the court will accept my ability to have freedom of speech and association,” Janus said, “and if they will support workers rights in order to be able to let us make our own decisions and not be mandated by another force or a third party.”