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The Supreme Court held oral argument in the Janus v. AFSCME case this morning.  A transcript of the oral argument can be found here. Overall, the argument was very similar to the one held in Friedrichs v. California Teachers Association last year. Here are some highlights of the questions and answers:

How are union agency fees any different than student activities fees or bar association fees? (Questions from Justices Ginsburg and Sotomayor) William Messenger, the attorney for Mark Janus, responded that compelling state interests justify these other types of fees, but not for union agency fees.

What about the “free-rider” effect? (Question from Sotomayor) Mr. Messenger responded that: “[T]here is no reason why negotiating a contract for all employees in a unit would be more expensive than negotiating a contract just for the union members…” Justice Sotomayor countered that the lack of agency fees would drain the resources of the unions who would still have to represent non-members.

Is the duty of fair representation based on the Constitution? (Question from Justice Alito) Mr. Messenger responded that it is not. Justice Alito’s question was in response to prior questions about the “free-rider” effect. I took his question to imply that if the unions are worried about free-riders, they can seek to not represent them.

Don’t the unions have a strong reliance interest on Abood(Question from Justice Kagan) Justice Kagan stated that the Court has never overruled a case where reliance interests are as remotely as strong as they are in this case.  She stated that twenty-three states, the District of Columbia, and Puerto Rico would all have at least portions of their collective bargaining statutes declared unconstitutional. Mr. Messenger responded that the prevalence of agency fees should actually be a factor in favor of overruling Abood.

What happens to collective bargaining agreements with agency fee provisions if the Court declares them unconstitutional? (Question from Justice Kagen) Mr. Messenger asserted that agency fee provisions in contracts could be “excised” and that the rest of the contract would continue. Justice Kagen responded that there was no evidence in the record as to how many CBA’s, if any, had severability provisions in them. David Frederick, attorney for AFSCME, had an interesting response to this same question. He asserted that, “Union security is the tradeoff for no strikes.” I took this to mean two things. First, because there was a quid pro quo for the union security, Mr. Frederick was asserting that you cannot simply “excise” that CBA provision. Second, Mr. Frederick may have been trying to imply that the removal of agency fees provisions would eliminate the no-strike provisions in existing contracts.

If Janus prevails will unions have less political influence? (Justice Kennedy). Justices Kennedy and Alito continued to hammer away at the notion that all union speech involves matters of public concern because it goes to the size, structure, and cost of government. Justice Kennedy repeatedly stated that because agency fees directly affect a union’s political influence that’s the “end of this case.”

What about separating chargeable versus non-chargeable expenses? (Justice Breyer) Justice Breyer repeatedly asked about the “compromise” reached in Lehnert v. Ferris Faculty Ass’n and asked why that compromise wouldn’t suffice here. In Lehnert, the Court distinguished between chargeable expenses and non-chargeable expenses. Neither side seemed very interested in the “compromise” suggested by Justice Breyer.

What questions did Justice Gorsuch ask?  None. Justice Gorsuch did not ask any questions during the oral argument.

Comments: After Justice Scalia passed away, the Court split 4-4 on the Friedrichs case. So all eyes were on Justice Gorsuch today. Unfortunately, Justice Gorsuch did not ask any questions at the oral argument so we are left speculating about his position. Given his conservative judicial record, I suspect both sides of this case expect Justice Gorsuch to join Justices Roberts, Kennedy, Alito, and Thomas in ruling for Mark Janus and overruling Abood.

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