For the second time in two years, the U.S. Supreme Court heard arguments on the constitutionality of union “fair share” fees, and the justices appeared just as ideologically divided as they were the first time.

But with Justice Neil Gorsuch on the bench, there will be no deadlock in Janus v. AFSCME as there was in 2016 in Friedrichs v. California Teachers Association. The death of Justice Antonin Scalia that year left the court with eight members. Gorsuch, widely predicted to cast the decisive vote striking down the fees, gave no indication of where he stood during the hourlong arguments in Janus. He did not ask any questions.

In Janus, a host of conservative and libertarian groups are urging the justices to overrule their 1977 unanimous decision in Abood v. Detroit Board of Education. Abood rejected a First Amendment challenge to the fees paid by nonunion members to public-sector unions acting as the exclusive representative of employees. The high court in Abood said the fees did not violate nonunion members' free speech rights as long as the money was used to cover the costs of collective bargaining, but not for political purposes.

Here are some key moments from Monday's arguments.

Gorsuch was silent. Anyone expecting to get some insight into Gorsuch's views on the fee issue undoubtedly was disappointed by the end of the arguments. The freshman justice said nary a word. Since his somewhat aggressive argument debut on the high court, Gorsuch seems to have scaled back his questioning of the lawyers before him. But this time, he was silent. Justice Clarence Thomas also said nothing. Besides Gorsuch's ultimate vote in the case, scholars and others will pour over anything he decides to write in the case, particularly his views of stare decisis.

And Kennedy was hostile to the union. Justice Anthony Kennedy didn't exactly have smoke coming out of his ears when he questioned Illinois Solicitor General David Franklin but he clearly was fired up by the state's defense of the fees. The union, Kennedy said while leaning forward, “can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, against—for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes? That's the interest the state has?”

Before Franklin could fully respond, Kennedy added, “Doesn't it blink reality to deny that that is what's happening here?” Franklin said the state has never denied many topics in collective bargaining with public employee unions have serious fiscal and public policy implications.

Kennedy also pounced on the union's counsel, David Frederick of Kellogg, Hansen, Todd, Figel & Frederick, asking him whether unions will have less political influence if the union loses in this case. When Frederick said yes, Kennedy declared, “Isn't that the end of this case?” Not only isn't it the end, it's not the right question, said Frederick. Instead, the question is whether states have the authority to set up a collective bargaining system in which unions are required to represent minority interests.

Sotomayor calls out Francisco—again—for DOJ's switched-up position. Maybe it's time to call the solicitor general the “flipper general”? In January, Justice Sonia Sotomayor asked U.S. Solicitor General Noel Francisco to justify the government's decision to change position in a challenge to Ohio's process for purging its voter registration rolls. The Obama administration had supported the challengers; the Trump administration backed the state. The Janus case is another instance of a switched position and Sotomayor wasn't happy.

After calling the government's new position “such a radical new position,” she added, “Mr. General, by the way, how many times this term already have you flipped positions from prior administrations?” Francisco replied three so far.

Besides Janus, the others are another labor challenge in NLRB v. Murphy Oil and consolidated cases argued in October, and the Ohio case, Husted v. A.Philip Randolph Institute. In Ohio v. American Express, also argued Monday, the Justice Department originally sued American Express along with 11 states but declined in June to pursue a high court appeal. In December, the Justice Department changed its position on the employment status of administrative law judges in the U.S. Securities and Exchange Commission dispute to be argued in April: Lucia v. SEC.

Demonstrators in support of Mark Janus outside the U.S. Supreme Court in the union fees case Janus v. AFSCME, on February 26, 2018. Credit: Diego M. Radzinschi / NLJ

OK, but maybe there's a compromise? Two law professors' ears may have been burning during part of the arguments as several justices focused on their amicus brief. Harvard Law School's Charles Fried and Yale Law's Robert Post offered a narrower path than overruling Abood. Their brief suggested adopting the statutory duties test proposed by Scalia and three other justices in Lehnert v. Ferris Faculty Assn. in 1991. Under that test, contributions to a public-sector union “can be compelled only for the costs of performing the union's statutory duties as exclusive bargaining agent.” If those statutory duties can be limited to wages, hours and working conditions, Justice Stephen Breyer suggested to Frederick, “those three terms have a hundred years of history written around them. It shouldn't be hard to administer and should keep the things like lobbying and so forth out of it.”

Ginsburg wants to know: Are bar fees at risk? Justice Ruth Bader Ginsburg asked Mark Janus's lawyer, William Messenger of the National Right to Work Legal Foundation, if agency fees are unconstitutional, what about student activity fees and mandatory bar association fees? Messenger said bar association fees are justified by the state's compelling interest in regulating the practice of law before its courts. Student activity fees are justified, he said, by the government's, or the university's, compelling interest in a viewpoint-neutral forum for speech. Ginsburg also asked Francisco, supporting Janus, what impact a decision striking down the fees would have on private-sector unions. Francisco said that in the private sector, there is no state action when it comes to collective bargaining agreements and so the First Amendment does not apply.

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