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, the Donald Trump 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 session Monday that a decision barring mandatory fees could have sweeping consequences.
"You're basically arguing, do away with unions," Justice Sonia Sotomayor told William Messenger, a lawyer with the National Right to Work Legal Foundation. The group is representing Illinois worker Mark Janus in his Supreme Court challenge.
On the other side, Justice Anthony Kennedy, who has voted against unions in past related cases, scoffed at labor's argument that there is a difference between collective bargaining over government employees' pay and benefits, and unions' political activities, which nonmembers do not have to support.
If the unions lose, won't they have less political influence, Kennedy asked David Frederick, representing the American Federation of State, County and Municipal Employees Illinois affiliate. Yes, Frederick said.
"Isn't that the end of this case?" Kennedy replied.
Janus says he has a constitutional right not to contribute anything to a union with which he disagrees. Janus and the conservative interests that back him contend that everything unions representing public employees do is political, including contract negotiations.
The Trump administration is supporting Janus in his effort to persuade the court to overturn its 1977 ruling allowing states to require fair share fees for government employees.
The unions argue that so-called fair share fees pay for collective bargaining and other work the union does on behalf of all employees, not just its members. More than half the states already have right-to-work laws banning mandatory fees, but most members of public-employee unions are concentrated in states that don't, including California, New York, and Illinois.
Labor leaders fear that not only would workers who don't belong to a union stop paying fees, but that some union members might decide to stop paying dues if they could in essence get the union's representation for free.
Justice Ruth Bader Ginsburg suggested it would be natural for union members to say "I would rather keep the money in my own pocket," potentially seriously cutting union revenues.
"I submit that's a perfectly acceptable result," Messenger said.