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Justice Kennedy Takes Aim at Public Sector Unions in Janus Oral Arguments

"It seems to me your argument doesn't have much weight."

U.S. Supreme CourtU.S. Supreme CourtThe U.S. Supreme Court heard oral arguments yesterday in a case that could substantially undercut the legal privileges currently enjoyed by public sector unions nationwide. If the comments made by frequent swing vote Justice Anthony Kennedy are any indication, the union side has cause for alarm.

At issue in Janus v. American Federation of State, County, and Municipal Employees, Council 31, is whether it is constitutional for state and local governments to require their workers to pay union fees as a condition of employment, even when those workers have declined to join the union.

Illinois Solicitor General David Franklin, who was at the lectern defending the state's compulsory fee scheme, told the Court that "the state has a much freer hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign, and...that freer hand includes broad authority to put conditions on employees' speech."

Unfortunately for Franklin, that argument apparently did not sit well with Justice Kennedy, who often casts the decisive vote in closely divided cases. "What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," Kennedy retorted. A little bit later, Kennedy told Franklin, "it seems to me your argument doesn't have much weight."

David Frederick, the respected Washington lawyer who is representing the AFSCME, also butted heads with the justice. According to Frederick, "states, as part of our sovereign system, have the authority and the prerogative to set up a collective bargaining system in which they mandate that the union is going to represent minority interests." That state authority, he stressed, includes the power to require non-members to pay a fee to the union that supports collective bargaining activities that benefit members and non-members alike.

But Justice Kennedy seemed to dismiss that point too. The union's position, Kennedy told Frederick, involved "mandat[ing] people that object to certain union policies to pay for the implementation of those policies against their First Amendment interests." In other words, Kennedy seemed to suggest the mandatory fees at issue here are unconstitutional.

That is the very argument made by Mark Janus, the Illinois public sector worker at the heart of this case. Janus objects to being forced to contribute to the coffers of a union that he has refused to join, insisting that such compulsion violates his First Amendment rights because it makes him subsidize the union's political speech and activity. Judging by the oral arguments, Justice Kennedy seemed inclined to rule in Janus's favor.

If any of the above sounds familiar, that's because the Supreme Court grappled with a nearly identical case two years ago called Friedrichs v. California Teachers Association. Most court-watchers at the time expected the union to lose that dispute and for the mandatory fee scheme to be declared unconstitutional, but after the sudden death of Justice Antonin Scalia, the Court was unable to reach a majority and deadlocked 4–4. Janus is effectively a Friedrichs do-over.

So in a sense, the only question that really mattered yesterday was whether Scalia's replacement, Justice Neil Gorsuch, will come down on the side of Janus or the union. But we're going to have to wait a few months longer to find out the answer. Justice Gorsuch did not speak a single word during the oral arguments.

Related: "3 Supreme Court Cases to Watch This Month."

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  • Get To Da Chippah||

    Don't get your hopes up. Roberts will flip his vote so he will still get invited to all the good cocktail parties.

  • AlmightyJB||

    Union dues are a tax.

  • DiegoF||

    Didn't Volokh file an amicus for the union or something (haven't been following too closely)? As in, he obviously is not sympathetic to them politically but rejects Janus's 1A claim? I thought for that reason people were speculating that Gorsuch might decide accordingly. And I frankly think he will if it strikes him as a good argument; I think he's got integrity.

    It will be interesting, but not really shocking, if Gorsuch ends up joining the "liberal" justices and Kennedy writes for the "conservative" dissent.

  • BestUsedCarSales||

    Volokh's point is a strong one. At the very least it raises even stronger libertarian objections to many other aspects of government, taxation, and their work.

  • DiegoF||

    Makes sense. I think he also filed an amicus for the gay couple in Masterpiece. And, while they're obviously mean-spirited, hateful people, I myself was always a bit skeptical that the 1A would be able to do the heavy lifting in this case; at the very least, it may involve a close and unsatisfyingly arbitrary-feeling call. I'll have to take a closer look.

  • ||

    Volokh's point is actually very weak.

  • Bubba Jones||

    The state is compelling political speech.

    I agree that 1A doesn't necessarily speak to compelled dues for collective bargaining, but the unions spend those dues on political campaigns.

  • turco||

    I am worried Gorsuch will pick this one to show he is a "swing" vote or something, and go with the liberal wing.

  • Penny_Worth||

    I think that's unlikely. Remember, President Trump consulted Judge Andrew Napolitano on this appointment. Though Judge Napolitano would not accept the appointment himself, he did endorse Justice Gorsuch. Considering Judge Napolitano's character, I suspect that Justice Gorsuch is being silent to either communicate that this is essentially a 'no-brainer' (the union ought to lose, logically) or to give the union opportunity to undercut its own case.

  • Brian||

    I'm actually very unconvinced by the "government forces people to support speech they don't like all the time" argument.

    Clearly, if there aren't limits to that, then freedom of speech isn't really a thing.

  • tlapp||

    Will he come up with another twisted legal interpretation as he did in Obamacare?

  • Mickey Rat||

    Love this logic:

    The state, who is the employer, has the authority to compel the employee to accept a specific third party to represent the interests of the employee in employment negotiations with the state and force the employee to pay that third party.

    No conflicts of interest there, at all.

  • Scarecrow Repair & Chippering||

    Proggies say Nazis were not socialist because they only controlled the owners of the means of productions, they did not own the means of production directly.

    I guess what they were saying is that the Illinois state government is fascist, not socialist.

  • Rhywun||

    What is it with Illinois and Nazis...?

  • Holmes IV||

    Have you ever been there?

  • Elias Fakaname||

    National socialism and mainstream socialism are both bastard children of Marxism. And not the good kind. More like an embarrassing backstairs affair that went horribly wrong and produced very regrettable, embarrassing offspring.

  • Iheartskeet||

    In fairness, I don't think there is actually a "good kind".

  • Unlabelable MJGreen||

    Justice Gorsuch did not speak a single word during the oral arguments.

    LAZY!!

  • Jerryskids||

    Clarence Thomas' sockpuppet.

  • Chipper Morning Baculum||

    It would be hilarious if Clearance Thomas busted out an actual sock puppet during oral arguments.

  • Billy Bones||

    I believe he has already came to his conclusion (for Janus), so there were no questions to ask. IMHO, this is an absolute no-brainer and the liberal justices will have to bend over backwards to try and justify it. I believe SCOTUS has already declared that money is speech (Citizens United), so what is the question here? His 1A rights are being violated if they take his money and use it for speech he does not agree.

  • Penny_Worth||

    Silence does not always indicate laziness. Sometimes it indicates thoughtfulness, and a desire to know more before speaking. A thoughtful question or comment can gain more information than one quickly asked.

  • John||

    You can't overstate how badly the closed shop and forced union dues screw the individual worker. Such rules make unions completely unaccountable to their membership. Hey, you don't like us taking your money and spending it on political causes that have nothing to do with you and that you don't like anyway? Fuck you pay me. The employer screwing you over? We don't care because the guy who replaces you will have to join the union too. So fuck you pay me.

    Any doubt how badly people are screwed by closed shops and enforced dues is ended by the fact that as soon as people are given the right to opt out, they do in droves. If public sector unions were anything except a forced subsidy for union hacks and democratic politics, the unions wouldn't be so threatened by the prospect of people being able to opt out. They are threatened only because they understand how little value they actually provide to their members and don't want to see their scam ended.

  • NotAnotherSkippy||

    But free riders!

  • John||

    yeah. somehow unions manage to still exist in open shop states. It is almost as if providing actual value for their dues would cause people to join them or something.

  • NotAnotherSkippy||

    What's good for hoffa is good for america.

  • John||

    +1 union way.

  • Citizen X - #6||

    An unmarked grave?

  • Chipper Morning Baculum||

    Being entombed in cement?

  • Sevo||

    Under Tammy Faye's makeup.

  • Ben of Houston||

    In open shop states, the unions have to work to justify their existence. Thus, they provide services and keep dues to a minimum. It's the classic competition vs monopoly situation.

  • Elias Fakaname||

    But...but......I thought de o rats LOVED giving people free stuff on the back of others. Now they don't?

  • tlapp||

    The free riders are the union leadership that get paid regardless of what their members want.

  • Galane||

    Forcing government employees to pay dues without being a member of the union is a workaround for the part of the Taft-Hartley Act that outlawed the closed shop. Theoretically, there are no closed shops in the USA, where you had to join a union *before* getting a job there.

    Unfortunately, Taft-Hartley didn't abolish the union shop, where people had to join a union to *keep* the job. So, essentially the same as a closed shop.

    Making it illegal to force non-members to pay union dues anyway, won't be the end of public employee unions, they'll just have to try harder to convince people that giving them a big chunk of their paycheck is actually good for anything.

    Rather than couching this as a free speech issue, how about a contractural one? Forcing an employee to pay a fee to an organization that provides certain services in exchange for that fee, but not actually providing those services to the non-member being forced to pay the fee. That isn't proper at all.

    Think of it as though Disneyland got a law passed in California that required everyone living within 25 miles of the park to have to pay a special "admission fee" once a month, but paying that fee didn't entitle the person to enter the park. The supporting argument being that everyone within 25 miles of Disneyland benefits in some way from the presence of the park, so they should pay for that.

  • MarkLastname||

    I agree that it shouldn't even be about free speech.

    The union's argument is that, because they negotiate on behalf of non-members, they're entitled to extract a fee from them, regardless of whether they asked them to. By which logic, if I mow your lawn without you asking me too or wanting me too, I'm legally entitled to charge you for it. If this is true, then any individual or corporation is legally entitled to compensation for any positive externality they confer on anyone else. Which would be insane.

  • Fuck you, Shikha (Nunya)||

    +1 Good Fellas

  • Bubba Jones||

    The state and unions would have a better argument if the unions were banned from electioneering.

    State employees aren't allowed to campaign while on the clock, but they can have their wages siphoned off by political groups?

    That ain't right.

  • Incomprehensible Bitching||

    You don't understand: The People have the right to force The Little People to pay The People's Way for negotiating with The People on behalf of The People, because, well, People.

    Why do you hate workers?

  • Rhywun||

    You know who else liked to go on all the time about Volk?

  • Chipper Morning Baculum||

    The Zimbabwe field hockey team in 1980?

  • DiegoF||

    Rhodies speak English dammit!

  • Bongo Supreme||

    Gorsuch is definitely going to come down on the side of individual freedom. And it will be glorious.

  • John||

    I don't think people fully grasp how big of a deal it will be if that happens. Public sector unions represent the bulk of the funding for the Democratic party and the left in general. If they no longer can force people to fund them, it will be an enormous blow to the left and change the political landscape in some of the bluest states.

  • NotAnotherSkippy||

    Meh, it won't be as of a deal as you think. The majority will still stick with the unions and government jobs will still be a spoils system for the good side of the culture war.

  • John||

    That is not what happened in Wisconsin. When Scott Walker got rid of compulsory union dues, the public sector unions crashed and burned almost immediately. Can't see why Wisconsin would be any different than any other state.

  • NotAnotherSkippy||

    It's exactly what happened in wisconsin. A majority of union members stayed. A significant # left but that doesn't invalidate what i said.

  • John||

    It was an enormous loss of revenue for the unions. Let's say you are right and only 30% leave. Do you know how much money that would represent? Billions of dollars that are no longer funding leftist causes. That is a big deal.

  • NotAnotherSkippy||

    It's a chunk of money but just like the nra thr primary value of unions is the bodies they bring more than the money. That's my only point.

  • Chipper Morning Baculum||

    How about you guys settle this with some facts? Surely we can find what percentage of union members stayed?

    For the most part, union membership is beneficial for workers. Of course it should not be compulsory, but I don't think most will give up their membership.

  • Rhywun||

    It's beneficial for some workers, namely the laziest and most incompetent among them. It is absolutely, 100% bad for taxpayers.

  • Enjoy Every Sandwich||

    Speaking of the taxpayers, it would sure be nice if they were represented in the negotiations between the public sector unions and the government, since they're the ones who actually pay the resulting bill.

    But I guess that would be paternalistic cis-hetero shitlord fascism or something.

  • Citizen X - #6||

    Taxpayers are represented by elected officials. If you don't feel that your elected officials are working in your best interests, maybe you should have voted harder?

  • Bubba Jones||

    If 70% of union dues go toward union boss salaries and 30% go toward political contributions, what happens when dues are cut by 30%?

    I suspect it is not an across the board cut.

  • Elias Fakaname||

    I'm not so sure. What happens when one of Don apelosi's soldiers is making the weekly collections and the Teamster's envelope is a noticeably lite? The Don expects to wet her beak!

    Things could get contentious.

  • Rhywun||

    It's still worth doing. Progs get everything they want one small step at a time; it's time to turn the tables. This could be the first step in getting rid of the abominations altogether.

  • Iheartskeet||

    Yep. ANY steps in the right direction deserve a round of applause.

  • LynchPin1477||

    the state has a much freer hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign

    I'm actually somewhat sympathetic to that argument. The state isn't forcing someone to work for them. Although there are some areas of employment in which the state holds a monopoly.

  • NotAnotherSkippy||

    The state can confiscate your property at will, but it can't fire bad teachers or masturbating EPA employees. I find little merit in the argument.

  • Bubba Jones||

    Even FDR argued against public sector unions.

  • Robespierre Josef Stalin Pot||

    I agree with the defendant. If someone is willing to rent seek in an organization by not paying dues then said rent seeker should face the consequences from people who actually do pays their dues-- just like in the old days.

  • NotAnotherSkippy||

    So about all that welfare...

  • Robespierre Josef Stalin Pot||

    Yeah, I can make a distinction between membership dues and taxes. You can't.

  • NotAnotherSkippy||

    Sorry, was that supposed to be a reply? Funny how dues only applies to union membership and not every other aspect of life.

  • John||

    Narrator

    No, no he couldn't

  • Robespierre Josef Stalin Pot||

    So, John, what happens to you if you are a lawyer and you don't pay for your bar membership dues?

  • John||

    It is called a license fee dumb ass. That is not the same as supporting a union. The State Bars are nonpolitical organizations run by the Supreme Courts on par with the motor vehicle departments. They are not the same as the ABA you doofus.

  • Agammamon||

    1. The state bar is the organization that administers the licensing regime set by the state supreme court. It more like Underwriters Laboratory than Teamsters so don't confuse it with the American Bar Association.

    2. The ABA is not a union either. They do not negotiate anything. They are a professional association and lobbying organization.

  • Sevo||

    "Yeah, I can make a distinction between membership dues and taxes. You can't."

    So you can lie when you please?
    Surprise! (not)

  • Get To Da Chippah||

    The simple solution is not to force the union to negotiate on behalf of non-union members.

  • Incomprehensible Bitching||

    Yes: From each according to their ability, to each according to their need.

    Hmmmmmm.

  • RoyMo||

    You mean like the Molly Maguires? But they swore a bloody oath and stood for True Religion, and enforced with sledgehammers and bloody steel toed boots the honest way. I don't see AFSCME being up to that and federal law enforcement is rather different.

  • MarkLastname||

    It's not rent seeking; you don't seem to know what that means. Janus didn't ask the union to negotiate on his behalf; if they're compelled by law to do so, then they should try to get the law changed.

    You don't get to forcibly extract a few from someone for rendering them a service they didn't ask for. That's extortion.

  • Jerryskids||

    I heard Nina Totenberg on NPR commenting on the case yesterday morning, she didn't say a word about the plaintiff's side of the case. To hear her tell it, the case is simply about attempting to overturn a 40-year old precedent that allows unions to get around the "free rider" problem by making closed shop employees pay their fair share of collective bargaining costs even if they cannot make them pay for non-collective bargaining-related expenses such as political donations and advocacy for one side of a public policy debate. No mention of the argument that when it comes to collective bargaining for government employees, all of it is a public policy debate. (Unless you're Bernie Sanders and think the government can just magically produce enough money to solve every problem and there's no trade-offs to be considered between paying teachers more, hiring more cops, spending more on mass transit, guaranteeing everybody free healthcare and college, instituting a basic minimum income, and giving every child a free pony.)

  • John||

    The compensation for public employees is determined by the state legislatures. The myth of public employee unions is that they have any bargaining power. They do not. Public employee unions can negotiate about all of the unimportant things like when they can make someone change jobs or move offices. They cannot negotiate about compensation and job security, which are the only things that matter. Public employee unions are nothing but political action committees that are supposed to promote the interests of public employees. They are not unions in the same sense private sector unions are. So, compelling people to join them is a much bigger infringement on people's First Amendment rights than even a state that has closed shop laws for private sector unions.

  • RoyMo||

    You have clearly never heard of the CCPOA...

  • Bubba Jones||

    "For a manual on police union negotiations, Ron DeLord's early work makes for an entertaining read. The former head of the Combined Law Enforcement Association of Texas (CLEAT) for two decades, DeLord has published acerbic how-to guides for police union bosses on securing generous benefits and pay raises for cops, complete with insult-laden passages calling city officials cockroaches and reporters lying drunks."

    http://www.texasobserver.org/e.....ty-reform/

  • Microaggressor||

    Look at this jerk. He thinks children don't deserve ponies.

  • Joe_JP||

    "she didn't say a word about the plaintiff's side of the case"

    [It won't let me to post the link, but it's on the NPR website]

    I listened to her remarks. She summarized the case including the claims of the plaintiffs. The segment had audio from both sides of the dispute. She then spoke about the oral argument, again both sides were summarized.

    Did you only listen to a part of her segment? Or was it another one?

  • Joe_JP||

    The segment is entitled "Supreme Court Hears Fiery Arguments In Case That Could Gut Public Sector Unions."

    Maybe, she was on something else, but I think these summaries NPR has of oral arguments are the best way to get a full sense of the situation.

  • Jerryskids||

    Thanks for that link - I was surprised to hear Nina giving such a one-sided summary because NPR is actually more fair and balanced than CNN. What I heard was on the newscast, so maybe just more of a promo for that story.

  • Jerryskids||

    And then again, this was yesterday morning when I heard her, before the case had been argued and before the All Things Considered piece ran.

  • Elias Fakaname||

    "I was surprised to hear Nina giving such a one-sided summary because NPR is actually more fair and balanced than CNN."

    I can believe that, although you're not setting the bar very high.

  • Robespierre Josef Stalin Pot||

    Sales of newly built homes are falling, and the culprit is clear. Homebuyers increasingly can't afford what they want. Higher mortgage rates, combined with the loss of homeowner tax breaks in some of the nation's most expensive markets, are taking away buying power.
    Sales fell in December, when the new tax law was signed, and then again in January, when mortgage rates moved higher. Sales are now at their lowest level since August of last year.

    SELL!! SELL!! SELL!! SELL!! YOU SEE WHAT THESE COMMIES AND THEIR DEFICIT SPENDING DO TO THE ECONOMY. SOON WE'LL BE LIKE IN VENEZUELA ZIMBABWEISTAN. THE DOLLAR IS GOING TO BE WORTHLEZ AND THE ONLY VALID CURRENCY IS GOING TO BE GOLD AND EXOTIC ZOO ANIMALS LET GO BY THEIR UNPAID GOVERNMENT EMPLOYEES

    Ah... I miss the old days.

  • NotAnotherSkippy||

    Say, how IS your socialisy utopia these days?

  • Microaggressor||

  • Citizen X - #6||

    Before you found out the hard way that, when you agree to pay a mortgage, you have to actually pay it in order to keep your house?

  • Diane Reynolds (Paul.)||

    Sales of newly built homes are falling, and the culprit is clear. Homebuyers increasingly can't afford what they want.

    they couldn't afford what they wanted before, they just went deeper in debt to get it.

  • BestUsedCarSales||

    That tax break is bullshit anyway. Either extend to rent payers as well or get rid of it.

  • Agammamon||

    *Technically* it was - with the tax break, owners could afford to rent at lower prices than they would have without it. So some portion of the tax break went to renters in the form of lower rents.

    That is, in those places where housing policies (like greenbelts) haven't artificially reduced the supply of housing so that demand far outstrips supply. In *those* places (ie, the most expensive cities in the country) renters get shit and are happy for it.

    But, again, its a problem caused by government and not the market and people like Stalin up there will still insist that we give government more power to fix the shit that government screwed up in the first place.

  • Juice||

    So some portion of the tax break went to renters in the form of lower rents.

    LOL

  • Chipper Morning Baculum||

    Dude, rents are set by demand.

  • Bubba Jones||

    With higher profits, there should be more supply.

    Unless supply is artificially constrained.

  • Agammamon||

    Rents are set by an interplay between supply and demand, not demand alone.

  • BestUsedCarSales||

    That's not even technically true. Even if your statement was accurate, a tax write-off for one group is not equivalent to a reduction in living costs for another.

  • Sevo||

    BestUsedCarSales|2.27.18 @ 3:48PM|#
    "That's not even technically true. Even if your statement was accurate, a tax write-off for one group is not equivalent to a reduction in living costs for another."

    Bullshit.
    Rents are set by the buyers with the sellers competing for the sales. The seller who takes the tax credit as a lower cost gets the sale.
    Did you think EVUL KORPORAHUNS set prices?

  • Agammamon||

    That absolutely is true. Its called incidence - most commonly mentioned as 'tax incidence' when discussing who is actually paying corporation tax, owners, employees, or customers.

    In this case a tax rebate for owners reduces the cost of production potentially allowing an owner to lower rates while maintaining the same profit margin - thus undercutting a competitor. Eventually, in an unconstrained market, *all* providers have lowered their prices, to remain competitive, and so *renters* actually get the majority of the tax break money for themselves.

    In an unconstrained market.

    One where supply is constrained (such as most major cities through deliberate city policies) means that suppliers do not need to cut those prices as there is far more demand than supply.

  • Agammamon||

    Uhm, I just bought a house. And got what I wanted - 3 bedroom, 2100ft2, 2.25 acres. For 210k.

    Didn't need a tax break either.

  • Agammamon||

    https://tinyurl.com/ybyr3x67

    In case anyone is interested.

  • Chipper Morning Baculum||

    Nice!

  • Citizen X - #6||

    Party at Agammamon's house this weekend!

  • BestUsedCarSales||

    You don't want to Party in Yuma. They're very proud of their prison and ain't afraid to use it.

  • Citizen X - #6||

    Yeah, but that place looks like it would be pretty easy to fortify.

  • BestUsedCarSales||

    Well, certainly you could buy a shit ton of guns down in AZ.

  • Agammamon||

    AH, but I live in Somerton. A couple of years ago my roomate called the police on himself while he was tripping balls on meth - they just told us to let him sleep it off and they'd arrest his ass if they caught him driving.

  • Agammamon||

    And don't show up this weekend - I don't take possession until end of MAR so the current owners will be pissed and confused.

    He's a Marine so he *probably* won't shoot you - but knifehands man . . .

  • Earth Skeptic||

    Freaking hot.

  • Gary T||

    I notice it has "faulted ceilings".

  • Juice||

    3 bedroom, 2100ft2, 2.25 acres. For 210k.

    Jealous.

  • Juice||

    That's for overpriced newly built homes. They're not talking about overpriced existing homes, the supply of which is drying up, at least in the DC area. I'm looking for one right now even though I'm not entirely ready for it, the prices just keep going up and I don't think they'll stop any time soon plus interest rates are going up and I don't think they're peaking. I think they'll hit 5%+ and maybe 6% at some point in the next year or two. But, the prices of the houses are basically insulting at this point. Houses are easily 20% more than they were just a year or two ago. Mainly the houses that are leftover are multi-million dollar mansions, overpriced newly flipped houses, and overpriced shithole "fixer uppers" that are basically asking full price as if they were fixed up already. It's really hard to just find a well-kept existing house that's ready to move in, I think because of "rate lock" so that will keep prices high. Ok, either housing prices are going to keep rising or we're going to have another crash like 08, but another crash actually seems very unlikely at this point.

  • damikesc||

    Remember, this is really the "Obama recovery", even though interest rates stayed around 0 for almost his entire term in office.

    When you notice Trump has higher deficits --- which he will --- ask what they would've been if these same rates were in place for the last 8 years.

  • Diane Reynolds (Paul.)||

    If the comments made by frequent swing vote Justice Anthony Kennedy are any indication, the union side has cause for alarm.

    I think I finally have enough road miles under my belt to know that just because a jurist, or set of jurists is hammering one side during questioning, it doesn't necessarily indicate how things will turn out.

    In fact I recall reading an article that suggested when a judge hammers a particular side, it's sometimes an indication he agrees with the lawyer's case, and is testing them for integrity.

  • Bubba Jones||

    He's asking the questions he thinks will sway his colleagues.

    However, this was more about calling out the solicitor for being weak.

  • albo||

    Love this, um, totally not a threat from the AFSME lawyer's argument:

    "The fees are the tradeoff. Union security is the tradeoff for no strikes. And so if you were to overrule Abood, you can raise an untold specter of labor unrest throughout the country."

  • Microaggressor||

    That's wonderful. More government employees should walk off the job in solidarity.

  • Rhywun||

    Pubsec union workers are already barred from striking in my state.

    They do it anyway.

  • damikesc||

    "The fees are the tradeoff. Union security is the tradeoff for no strikes. And so if you were to overrule Abood, you can raise an untold specter of labor unrest throughout the country."

    If government employees decide to stop working --- how will we tell?

  • Colossal Douchebag||

    Remember PATCO? Good times, good times.

  • creech||

    It should be an employer's right to require all her employees to be members of a certain union, and to pay dues to that union. This is a bargaining issue. If follow then, that it's also the employer's right to refuse to bargain with any group. Some employers may prefer to negotiate with, say, one union representing 100 employees than with 100 employees individually. To eliminate the "free rider," the union should be able to say "if you don't join us, then we aren't bargaining for you."

  • colorblindkid||

    Which makes perfect sense for private unions, which even the most ardent libertarians I know are totally okay with. This case is about public sector unions. Public sector employees, who get paid with our tax money, are forced to fund politicians' campaigns whether they want to or not.

    Our tax dollars, regardless of our own political inclinations, are used to directly fund political campaigns.

  • albo||

    This is a taxpayer-funded, public job. The government shouldn't compel a worker to financially support a political position in order to have a public job.

  • Juice||

    It should be an employer's right to require all her employees to be members of a certain union, and to pay dues to that union.

    A private employer, sure, but not one who's "management" relies on donations from the union.

  • Juice||

    The fact that the government, ie the employer/management, is arguing on behalf of the union to keep the scheme alive is all you really need to know. The perverse incentives are right there staring you in the face defending themselves. Isn't that ironic?

  • John||

    The unions are so effective at protecting their workers even their employers love them. Come on what are you some kind of a cynic?

  • Enjoy Every Sandwich||

    I think it's funny that public sector unions exist at all. I've been told many times in a very angry tone of text by our resident lefties that the government is the source of all wisdom and goodness and fairness, and our noble public servants think only of protecting all workers who without this protection would all be starving in the streets.

    So how is it that the people working for these wonderful angels would need the protection and help of a union?

  • Tony||

    I cannot do better than this, and I would be remiss not to recommend it:

    Everything about Janus reeks of illegitimacy.

  • John||

    Elections have consequences. I seem to have heard that somewhere.

  • Tony||

    Among those consequences used to be that the president in office got to appoint supreme court justices.

  • John||

    With the advice and consent of the Senate. The Senate is free to turn down the President's nominee. If Obama wanted a nominee, he should have chosen someone agreeable to the Senate.

  • Gilbert Martin||

    Obama the Constitutional "expert" was easily confused.

    He also thought he had the unilateral authority to declare the Senate to not be in session in order to appoint his favorite union goon to the NLRB.

    He was corrected by the Supreme Court on that.

  • Tony||

    You would literally explode if Democrats did this to Trump. Don't pretend that it was normal to deny a president his SC pick for a whole year. Just stop for once.

  • Agammamon||

    It absolutely is - to prevent a single President from stacking the court,

    If someone else dies or leaves during Trump's first term it wouldn't be inappropriate to delay confirmation until after the next election.

  • Agammamon||

    If that causes problems for the court then maybe the members should think a little further ahead when it comes to when they wish to step down *cough*Ginsburg*cough*.

  • Sevo||

    "Among those consequences used to be that the president in office got to appoint supreme court justices."

    You lost, loser. Grow up.

  • John C. Randolph||

    Obama appointed two leftards to the court, including the Latina wise-ass, and you're all butthurt that he wasn't able to get one more when the people had rejected his socialist program and flipped the senate to the other brand of the Ruling Party?

    Cry me a river.

    -jcr

  • NotAnotherSkippy||

    Senate elections have consequences too.

  • Tony||

    They never used to have this precise consequence.

    I suppose you'll all be perfectly fine if Dems get a majority and deny Trump all his court picks.

  • NotAnotherSkippy||

    Yes, it did. But you agreed with the outcomes then, so it was OK. Does the name Robert Bork ring a bell?

    I suppose you'll all be perfectly fine if Dems get a majority and deny Trump all his court picks.

    See Bush 2. Let me guess, you were too young to remember that too.

  • Tony||

    Did I say that the senate has to confirm all picks? Bork was not denied because he was nominated by a Republican. That Republican still got to put someone on the court. Bork was denied for legitimate reasons.

    I realize that the McConnell era is all about discarding norms in favor of arcane rule-twisting to benefit a political party, but I happen to think norms are important for a society.

  • Juice||

    a gift to the GOP

    And government employees.

  • Rhywun||

    So Slate admits that pubsec unions exist to launder taxpayer money for Democrats. Well, that's honest of them.

  • Tony||

    Unions in general used to be the countervailing force to corporations that tend to support Republicans.

    This is simply the death blow to all unions. It was never about anything but partisan political power, ever, so don't go saying it's about freedom.

  • NotAnotherSkippy||

    Yes, it is all about partisan power and that is why you're so upset. It sucks being forced to live by your own rules, doesn't it?

  • Agammamon||

    The death of mandatory union membership is, by definition, more freedom.

  • Brian||

    Here, let me use a phrase that should calm you down:

    No one wants to take your union dues away.

  • John||

    That atricle is comically stupid. My favorite part is this

    Yes," Frederick responded, "they will have less political influence."

    "Isn't that the end of this case?" Kennedy said curtly.

    This exchange is stunning. It reveals that Kennedy knows quite well how Janus will cripple the Democratic Party—and views it not as a reason to tread with caution, but as a justification to bring down the hammer with maximum force. And why? Because agency fees help unions, and unions help Democrats, because Democrats often enact union-friendly measures. As another conservative originalist, Michael Ramsey, has pointed out, this may be a compelling policy reason to oppose agency fees. But it is not a constitutional argument, unless Kennedy has convinced himself that his own political preferences should become constitutional law.

    That ends the case because it shows that the purpose of these dues is political influence and thus forcing people to pay them is forced political speech. And the government can't spend tax money on political activities. The author of that article is comically stupid.

  • BestUsedCarSales||

    I think the author argues near the beginning that the money from those dues can't be used on political speech. Then they discuss that this will clearly hurt democrats because they receive heavy funding from unions. Perhaps he's arguing that those specific funds are not used politically, but that still seems like either a direct contradiction or a shallow rationale.

  • John||

    There is nothing political about this but ending it will be the doom of the Democratic party and only a Republican hack would want that seems to be his position.

  • Bubba Jones||

    I think this is a more balanced article.

    http://www.nytimes.com/2016/01.....ation.html

  • RoyMo||

    Mark Joseph Stern is not an ifiot, which makes him the best legal reporter Slate has ever had, but he is frequently rendered completely witless by his passions. Still better than Dahlia Lithwick.

  • Citizen X - #6||

    I cannot do better than this

    Finally, honesty from Tony.

  • Bubba Jones||

    The union was unable to convince him that his money wasn't being spent on donations.

    Whose fault is that?

    Is this like Planned Parenthood money not being spent on abortions?

  • Brian||

    It's funny how this article says:

    1. Union dues don't affect politics because they can't be spent on politics.
    2. If this goes to the plantiff, this will cripple the democrat party.

    Sure. It just makes sense.

  • MarkLastname||

    So, no actual arguments related to the constitutionality of the case. Sadly though, you're probably right: they can't do better than this.

  • damikesc||

    I cannot do better than this, and I would be remiss not to recommend it:

    Everything about Janus reeks of illegitimacy.

    Do you know why Brown v Board of Education is the one that was the main one before the SCOTUS? Because it was the most likely to succeed. It was, to paraphrase that laughable piece of gibberish, "political".

  • Tony||

    "[Eugene] Volokh, an avowed originalist and opponent of unions, explains that the government coerces Americans to fund speech they disagree with all the time. The government can spend tax dollars to promote messages that taxpayers loathe; it can require lawyers to pay state bar dues, then use the money to express ideas that certain lawyers dislike; it can collect a special assessment on teachers to advocate for policies that many teachers despise. Why can't it also let unions collect fees from nonmembers to cover the cost of collective bargaining?

    The obvious answer is that five members of the current court hate unions."

  • John||

    That guy is a moron. Governments cannot use tax money for partisan political activities. And that is exactly what the unions are doing.

  • Juice||

    Governments cannot use tax money for partisan political activities.

    Except for funding and hosting primary elections for certain favored political parties, of course.

  • Hank Phillips||

    Look up the Nixon Anti-Libertarian Law of 1971. Within 24 hours of the LP organizing as a political party, Tricky Dick and Congress were using tax money to subsidize looter party electioneering! This has spread to Junta-style dictatorships in the Bandana Republics. Some of these backward People's States subsidize16 Communist parties, but add 16 National Socialist parties to make it all "balanced." Since the subsidies are mandatory, taxpayers cannot afford to be forced to support a libertarian party, according to Attorney-Generalissimo Major Major Major Major of Precinct Catch-22.

  • Brian||

    See, really, we should just consider the government collecting union dues on behalf of unions as an in-kind contribution to political parties, which is a big no-no Citizens United illegal bad.

    So, of course, progressives love the idea.

  • Bubba Jones||

    Yes, but union members can get a refund of their political donations when in the nyt article I linked was almost HALF of the dues. I don't know if I am more stunned that they spend such a large fraction, or that they admit it and will refund it.

    What is plainly ridiculous is the idea that the state will compel you to support speech against the state. That's weird.

    Here's my real question. Why is collective bargaining so expensive? And when union employees lobby, does that count as a political donation?

  • Brian||

    Unions really shouldn't be able to lobby because money isn't speech.

    Or something.

  • Brian||

    Or, because "government" and "union" aren't the same thing.

    Differences matter, you know.

  • chipper me timbers||

    "The government can spend tax dollars to promote messages that taxpayers loathe "

    Just because they CAN doesn't make it right.

    "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical."
    - Thomas Jefferson

  • John C. Randolph||

    As far as I'm concerned, this isn't even a free speech issue. People who don't want their paychecks skimmed to pay for hookers and blow for mobsters and politicians have every right to refuse, even if they're employed by the taxpayers.

    -jcr

  • Juice||

    People who don't want their paychecks skimmed to pay for hookers and blow for mobsters and politicians have every right to refuse

    And find another job?

  • Hank Phillips||

    Sounds kind of like citizens wronged by coercive rent-seeking union goons may soon be able to bring class-action suits against the goon gangs for dereliction, damages and all kinds of unintended consequences of their violations of individual rights and the antitrust laws their Marxista maestros brainwash them into believing.

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