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Janus v. Afscme Oral Arguments at the Supreme Court: the Dog That Didn't Bark

February 26, 2018 in Economics

By Ilya Shapiro

Ilya Shapiro

We didn’t learn anything from this morning’s
argument in Janus v. American Federation of State, County and
Municipal Employees
, which asks whether state laws that compel
the payment of “agency fees” by nonmembers of
public-sector unions violate the First Amendment by forcing those
workers to support policy positions they don’t like. None of
the eight justices who heard the Friedrichs v. California
Teachers Association
case on the same issue two years
ago—which ended up 4-4 after Justice Antonin Scalia’s
death—appeared to have changed their minds. The ninth,
Justice Neil Gorsuch, didn’t ask a single question or
otherwise show his hand.

Justice Ruth Bader Ginsburg opened the questioning by asking
about the validity of student activity fees and bar dues if
Illinois state employee Mark Janus were to prevail, as well as how
such a ruling would affect private-sector unions. Janus’s
lawyer, Bill Messenger of the National Right to Work Legal Defense
Foundation, responded that different state interests were at play
there, and that there’s no state action in the private sector
and so no First Amendment harm. (Justice Scalia, in a 25-year-old
case called Lehnert v. Ferris Faculty Association, made
the same point, which is why he was considered the swing vote in
Friedrichs—though he showed himself to unambiguously
be on Rebecca Friedrichs’s side during oral argument in that
case.)

Justice Elena Kagan expressed concern about the practical impact
of a ruling that struck down the laws of 22 states that allow
agency fees, which would also affect thousands of collectively
bargained contracts. As expected, much of the questioning focused
on stare decisis—the weight of the 40-year-old precedent set
in Abood v. Detroit Board of Education that needs to be
overturned for Janus to win—an issue that
Cato’s amicus brief
focused on.

In the end, the smart
money remains that Gorsuch will vote with Justices Roberts,
Kennedy, Thomas (who also remained silent), and Alito in supporting
Janus’s lawsuit.

Messenger explained that the law works fine in the other states,
the contracts would all expire in the next few years at most, and
that in any event, maintaining an unconstitutional contract
can’t be a valid reliance interest. Solicitor General Noel
Francisco, siding with Janus, added that the contracts were
negotiated “in the shadow of” two recent opinions,
Knox v. SEIU and Harris v. Quinn, that threw
serious doubt on Abood’s continuing validity.

Justice Sonia Sotomayor raised the distinction between the
government acting as employer versus as sovereign—and that it
has much more constitutional leeway in the former role—as
well as impugning the solicitor general’s integrity for
changing the government’s position in now-three cases since
Donald Trump became president.

On the other side, Justice Anthony …read more

Source: OP-EDS

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