Messenger did not have good answers to these questions. Or, for that matter, why is collective bargaining different from individual bargaining? If a single employee requests a raise, why is that not a matter of public concern that is controlled by the First Amendment? What if all the employees at a particular government employer request higher wages, but they do so without the help of a union? If unions cannot charge agency fees to non-members, why can public universities charge activities fees to students who may not agree with all the speakers those fees help bring to campus? Why can states require lawyers to join bar associations that may advocate for changes in legal procedures that individual lawyers disagree with? The plaintiff’s attorneys’ core contention in Janus is that these agency fees violate the First Amendment, at least with respect to public sector unions, because they compel non-union members to subsidize advocacy that they may not agree with.Ī major problem with this argument, as quickly becomes clear as Justices Ruth Bader Ginsburg and Sonia Sotomayor being to pressure William Messenger, a lawyer for the anti-union National Right to Work Legal Defense Foundation, is that Messenger’s argument lacks a limiting principle. To prevent such free-riding, union contracts often contain a provision requiring non-members to pay agency fees, which reimburse the union for the cost of representing that non-member. As the argument progressed, Kennedy sounded less and less like a judge and more and more like an irate tea partier railing against “massive government.” The Court’s ostensible swing justice - the closest thing it has to a moderate conservative - sounded like Rush Limbaugh.Įventually, such free-riding by non-members can cause a union to collapse, as the union will no longer have the funds necessary to support its operations. If there was any doubt how this case would play out, that doubt was erased almost as soon as Justice Anthony Kennedy opened his mouth to attack the arguments raised by Illinois Solicitor General David Franklin, one of the attorneys arguing on the union’s side in Janus. And it will be a long-awaited victory for some of the Court’s most conservative members. Attorneys hoping to protect the labor movement from an impending disaster arrived to put up whatever resistance they could muster, but they also know how Janus is almost certain to end. It was the perfect metaphor for what would happen in the Supreme Courtroom just a few minutes later. Indeed, while the swarm of police officers surrounding the man made it impossible for me to question him, he almost certainly came to the Supreme Court this morning intending to be arrested. The man was unfailingly polite, and he wore a shirt suggesting that he was there to protest what the Court is about to do to public sector unions in a case called Janus v. Monday morning, in one of the Supreme Court’s men’s rooms, I watched a man get arrested.
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