WASHINGTON _ A sharply divided Supreme Court debated Monday whether to strike down mandatory union fees paid by about 5 million public employees in Illinois, California and roughly 20 other states.
And 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 as a condition of holding his job.
Kennedy said he agreed. The fees amount to "compelled subsidization" of a union and its "political influence," he commented. Because the employer is a government agency, that violates the First Amendment, which forbids the government to compel speech, Janus and his lawyers argue.
The court's 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. If that's the case, they asked, how can anti-union employees have full free speech rights to object to a fee?
Gorsuch, President Donald Trump's appointee to fill Scalia's seat, is in a position to cast the deciding vote, but he was uncharacteristically quiet during Monday's argument.
The attorney for the union, David Frederick, was a law partner of Gorsuch's when he was in private practice. He was joined by Illinois Solicitor General David Franklin, both of whom 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 the Lehnert v. Ferris Faculty.
Gorsuch intently followed the back-and-forth argument and gave no indication of how he will vote in the case of Janus v. AFSCME.
