The Constitution Has Nothing to Do With It

The Supreme Court’s conservatives prepare to hobble public sector unions as a gift to the GOP.

Supreme Court Associate Justice Anthony Kennedy.
Supreme Court Associate Justice Anthony Kennedy. Photo illustration by Slate. Photos by Thinkstock and REUTERS/Joshua Roberts.

On Monday, the Supreme Court heard arguments in Janus v. AFSCME, a case designed to let the court’s five Republican appointees kneecap the Democratic Party. Everything about Janus reeks of illegitimacy. The legal claim is laughable, the outcome preordained; even the ostensible plaintiff, Mark Janus, is a puppet. At a recent event, Janus revealed that he does not understand the case at all and in fact supports collective bargaining but incorrectly thinks his union fees are supporting political campaigns. His lawyers seem to have lied to him—much like the court will soon lie to us in proclaiming that the First Amendment somehow prohibits the agency fees at issue in this case. Don’t believe it. The conservative justices can dress up their gibberish in whatever legalese they wish. The reality will remain that Janus is a partisan vehicle designed to serve partisan goals, carried across the finish line by five justices who might as well admit that the Constitution has nothing to do with it.

The background of this deeply cynical case is straightforward. In 1977, the Supreme Court rejected the exact argument being made in Janus. Its decision, Abood v. Detroit Board of Education, involved a virtually identical challenge to agency fees in public sector unions as compelled political speech. These dues, also known as “fair share” fees, support the cost of collective bargaining. Unions are prohibited from using this money to support political activity, like campaigns and candidate contributions. The Abood court found that these fees—meant to prevent “free riders” from benefiting from union negotiations without having to subsidize them—do not violate the First Amendment, because they do not compel political speech.

Federal law allows, but does not require, unions to collect agency fees from nonmembers. Since Abood, a majority of states have passed right-to-work laws that outlaw these dues. Twenty-two states and the District of Columbia, however, still permit public sector unions to collect agency fees. In 2012, the Supreme Court indicated that it now believed agency fees infringe upon the First Amendment. In 2014, Justice Samuel Alito all but declared that the court was ready to overrule Abood and kill agency fees for public sector unions. In 2016, the court took a case crafted by anti-union activists to let Alito reverse Abood. But before he could hand down his decision, Scalia died, leaving the court deadlocked 4–4.

As an alarming New York Times report illustrates, the conservative donors who funded the judicial assault on unions then sprung into action to ensure that the next blow against Abood would be fatal. Richard Uihlein, an Illinois magnate and Republican donor, spent millions underwriting the court battle against agency fees. In particular, Uihlein gave money to the Federalist Society, a network of conservative lawyers who select many of Trump’s judicial nominees. The Federalist Society is run by Uihlein’s friend, Leonard Leo. It is Leo who chose Gorsuch to succeed Scalia, and it is Gorsuch who will decide this case.

Yet at arguments on Monday, Gorsuch was entirely silent. There are two possible explanations for his reticence. The first is that Janus is built upon such a preposterous First Amendment theory that Gorsuch saw no benefit in discussing it with counsel. If so, that’s a wise choice. The plaintiff, as well as the Department of Justice, which weighed in against unions, assert that basic conditions of employment—like health insurance and sick leave—are inherently political. When unions compel nonmembers to subsidize negotiations over these policies, this side claims, they are forcing these employees to associate with political expressions from which they dissent.

This argument is nonsensical, as an amicus brief signed by the right-leaning libertarian law professor Eugene Volokh illustrates. 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. And that’s the second reason why Gorsuch may have kept mum: He recognized that any comment he made could be interpreted politically as a dis against unions. Janus poses a serious threat to the court’s institutional legitimacy: Unions help Democrats win elections and implement progressive policy, and the court’s attack on unions doubles as an attack on the Democratic Party. When the court hobbles unions, it will look like it’s doing the Republicans’ bidding. Indeed, Senate Majority Leader Mitch McConnell has already celebrated the fact that Janus will hurt Democrats’ 2018 fundraising efforts, citing the case as “an example” of why he held Scalia’s seat open for Gorsuch.

In light of this unseemly background, you might expect all of the justices to shy away from the politics of the case. But Justice Anthony Kennedy embraced them head-on in a series of jaw-dropping exchanges. The first arose after Illinois Solicitor General David Franklin asserted that his state has an interest in “being able to work with a stable, responsible, independent counterparty” that “can be a partner with us” in contract negotiations. A look of disgust spread across Kennedy’s face, and he barked at Franklin:

It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes? That’s the interest the state has?

With this Rush Limbaugh rant, Kennedy revealed half of what this case is actually about: a deep conservative distaste for unions, which Kennedy, an apparent fiscal hawk, clearly blames for government glut. It is fascinating to compare the justice’s denunciation of unions with his encomium to corporations in Citizens United. To Kennedy, for-profit corporations are vital civic institutions that make key contributions to our political discourse, while unions are Democratic shills that bloat and destroy the government.

Minutes later, in a colloquy with union lawyer David Frederick, Kennedy dug into the other half of the case—the existential threat it poses to Democrats.

“Do you think that this case affects the political influence of the unions?” Kennedy asked Frederick. “[Can I] find a union newsletter which says, ‘Don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us’? … I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?”

“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.

Following Antonin Scalia’s unexpected death in 2016, the Judicial Crisis Network spent $7 million to ensure that President Barack Obama could not name the justice’s successor. After its success, JCN spent $10 million to help Republicans put Neil Gorsuch in Scalia’s seat. All of this money came from a single anonymous donor. With Janus, this donor is about to get what he paid for.