Public employee union fees raise ire at Supreme Court, but key justice remains silent on direction

WASHINGTON – The Supreme Court staged an animated, at times angry, debate Monday in a challenge to public employee labor unions that threatens their membership, financing and political power.

In a repeat performance of oral arguments held three times in the past six years, the court's liberals decried efforts to eliminate "fair share" fees from non-members in 23 states while its conservatives raged about forcing objectors to support most of the unions' activities.

"When you compel somebody to speak, don't you infringe that person's dignity and conscience?" said Justice Samuel Alito, the leader of the conservative wing on labor union issues. 

The key justice remained silent. Because of the vacancy left by Justice Antonin Scalia's death, the court was divided 4-4 two years ago in an almost identical case. Scalia's successor, Justice Neil Gorsuch, probably will have the deciding vote in this case. And he wasn't talking.

Given his conservative bona fides, President Trump's lone nominee is likely to tip the balance against the unions. That would upend the fees paid by police, firefighters, teachers and other government workers who don't join unions that represent them.

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After three cases in 2012, 2014 and 2016, the high court appears poised to reverse its own 40-year-old precedent and strike down the fees as unconstitutional. The ruling in 1977 said workers did not have to pay for unions' political activity. The verdict in this case, which is likely by June, would allow them to contribute nothing for collective bargaining and grievance procedures, as well.

If the court's five conservatives vote the way both sides anticipate, public employee unions in traditionally Democratic states in the Northeast and West will lose those workers and the fees they pay. Other lawsuits could follow if workers are allowed to band together and seek refunds for fees already paid.

On top of that, unions are braced for a slow bleed of full-dues-paying members. Until now, those workers could save only about 10% to 20% of their costs by quitting the union. A ruling against fair-share fees would enable them to become "free riders." That could force unions to raise dues on those who remain — or lose clout in states such as California, New York, Illinois, Pennsylvania and New Jersey.

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When Justice Ruth Bader Ginsburg noted that unions could be drained of the resources needed to negotiate with state and local governments, William Messenger, the lawyer for Illinois state worker Mark Janus, said, "That's a perfectly acceptable result."

When Justices Stephen Breyer and Elena Kagan pushed back on the argument that everything a public sector union bargains for affects public policy, U.S. Solicitor General Noel Francisco said, "All of it goes to the size, structure, cost of government."

Labor's shrinking role

The case, Janus v. American Federation of State, County, and Municipal Employees, is backed by conservative groups that have tried for years to overturn the court's decision upholding the fees for collective bargaining but not for political action.

The court ruled 7-2, 5-4 and 4-4 on three similar cases in the past six years, eating away at the 1977 decision without overruling it entirely. In 2016, Scalia's death a month after oral arguments denied conservatives their fifth vote — a vote Gorsuch probably will provide. 

Less assured is the impact such a ruling would have on organized labor in general, and public employee unions in particular. After a 70-year decline in union membership, the consensus is for more of the same.

"You're basically arguing, 'Do away with unions,' " Justice Sonia Sotomayor told Messenger near the end of the hour-long debate.

The nation's roughly 15 million union members make up less than 11% of the workforce, a drop from 35% during World War II. The decline has been fueled in the private sector, where only 6.5% of workers remain unionized.

In the public sector, more than one in three workers belong to a union, a percentage that has held relatively steady for decades. Unions such as AFSCME, the National Education Association, Service Employees International Union and American Federation of Teachers recognize that a loss at the Supreme Court will mean a loss of members.

About 5 million workers could be affected by the ruling — those who pay dues or fair-share fees to unions in states where public employees can be forced to contribute. Workers in 27 states cannot be forced to join or pay unions.

That divide between states is illustrated in union membership, which ranges from 7% of public employees in South Carolina to 67% in New York.

Pay raises or politics?

Some groups that have fought to end compulsory fees contend that unions can stave off membership declines by better representing workers. They cite data from states such as Indiana and Michigan after the enactment of right-to-work laws.

During the case in 2016, the 325,000-member California Teachers Association warned that tens of thousands of contracts governing millions of workers nationwide could be thrown into disarray if the Supreme Court upended fair-share fees. More than 4.5 million teachers are union members. 

Kagan pressed that point Monday, noting thousands of contracts for millions of workers could be invalidated.

"When have we ever done something like that?" she said. "What would be the justification?"

Three of the court's conservative justices left little doubt where they stood. They sharply criticized mandatory fair-share fees in the public sector, where much of what unions do affects public policy and tax dollars. 

When the unions' lawyer, David Frederick, acknowledged a negative ruling would affect the political influence of unions, Justice Anthony Kennedy shot back, "Isn't that the end of this case?"