The Supreme Court debated Monday whether to allow more than 5 million public employees to stop supporting their unions, casting doubt on the future strength of organized labor in California, Illinois and more than 20 other states.
The outcome may turn on how closely the court's newest member, Justice Neil M. Gorsuch, follows the words of his judicial hero, the late Justice Antonin Scalia.
A defeat for the public-sector unions would undercut their financing, weaken their political clout and perhaps trigger a sharp drop in their membership.
If the high court rules that no public employee may be required to pay a fee to support the union, labor leaders worry that many workers may opt to quit paying. Because public-sector unions provide major support to the Democratic Party, weakening them has been a longtime goal of conservative groups.
During Monday's argument, the justices appeared split along the usual ideological lines.
Four of the court's conservatives, including in this instance Justice Anthony M. Kennedy, made clear they want to strike down the forced fees.
They agreed with a lawyer for Mark Janus, an Illinois state employee who objects to paying $45 a month to support his union, the American Federation of State, County and Municipal Employees. Illinois Gov. Bruce Rauner launched the lawsuit challenging the forced fees as unconstitutional, and Janus became the plaintiff after a court dropped the governor from the case because he did not have personal legal standing to fight the fees.
William Messenger, an attorney for the National Right to Work Foundation, argued that no government worker should be forced to support a union and its political demands as a condition of holding his job. "Here, collective bargaining is core political activity," he said, since unions are seeking higher wages and more public spending.
Kennedy said he agreed. "What we're talking about here," he said, "is compelled subsidization of a private party that expresses political views constantly."
Because the employer is a government agency, that violates the 1st Amendment, which forbids the government to compel speech, Janus and his lawyers argue.
The four liberal justices sounded deeply disturbed that the court was on the verge of overturning a 41-year-old precedent that said union contracts could require all the employees to pay a "fair share fee" to cover the cost of collective bargaining.
Fair-share provisions have been written into thousands of contracts for teachers, transit workers, municipal employees and others, said Justice Elena Kagan.
She and others noted that the court in the past has said public employees did not have even limited free-speech rights to criticize their agencies or their supervisors. Whistle-blowers can be demoted or fired, the court said in 2006 in an opinion written by Kennedy.
"If we can permit the government as employer to do something as dramatic as firing someone," asked Justice Sonia Sotomayor, how can the government not be permitted to require them to pay "a fair share fee"?
Currently, the states — like the justices — are sharply split on unions. In 28 states, "right to work" laws generally forbid requiring employees to join or support a union. But in 22 states and the District of Columbia, mostly those with Democratic majorities, unions may negotiate contracts with school boards, transit districts or state agencies that require all employees to help cover the cost of collective bargaining.
The Supreme Court gave its blessing to this arrangement in a 1977 case, Abood vs. Detroit Board of Education. The justices said then that while teachers and other public employees may not be forced to pay for the union's political activity, they may be required to pay a lesser fee to cover the union's core expenses. Typically, the fees are about three-fourths of full union dues.
Janus' lawyers are urging the Supreme Court to overrule the Abood decision and hold that forced fees violate the free-speech rights of public employees.
Gorsuch, President Trump's appointee to fill Scalia's seat, has been seen as providing the fifth vote for the conservatives, but he was uncharacteristically quiet during Monday's argument.
The attorney for the union, David C. Frederick, was a law partner of Gorsuch's when he was in private practice. He was joined by Illinois Solicitor General David L. Franklin, and both of them stressed that Scalia had upheld the principle that public employees could be required to support their unions.
In 1991, Scalia wrote an opinion holding that if the law requires unions to provide certain services for all employees, it can also require all of them to pay for those services. "Where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost," he wrote in Lehnert vs. Ferris Faculty.
Citing Scalia's words, Frederick said the law imposes on unions a "duty of fair representation" to all employees. "And that's where you get the compelling interest in agency fees," he said.
In his legal brief, he included a passage that was directed at Gorsuch, who believes in following the "original meaning" of the Constitution. As written in the late 18th century, the document was not seen as according constitutional rights to government employees.
"The core principle, from the founding to today, is the government has a free rein in regulating expressive rights in the workplace," he said.
Frederick also cited a 1983 opinion by Justice Byron White, a native of Colorado and another of Gorsuch's heroes. "Justice White's opinion" in that case "says you can't run the government … if every grievance, every employment issue, becomes a constitutional issue," Frederick said.
Gorsuch intently followed the back-and-forth argument and gave no indication of how he will vote in the case of Janus v. AFSCME.
2 p.m.: This article was updated with additional quotes from the argument at the Supreme Court and reaction.