by Lisa Soronen, executive director, State and Local Legal Center 

If there ever was a case where the vote of only one justice is likely to matter, it is Janus v. American Federation of State, County and Municipal Employees. All attention was focused on Justice Gorsuch on February 26 as the Supreme Court held oral argument in this case. And he was silent.

The Court will decide the constitutionality of state statutes allowing public sector employers and unions to agree that employees who don’t join the union must still pay their “fair share” of collective bargaining costs. More than 20 states authorize fair share for public sector employees.

In Abood v. Detroit Board of Education (1977), the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective bargaining, contract administration, and grievance adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. So no free riders are allowed.

Why is only Justice Gorsuch’s vote likely at play in this case?

In 2016, right before Justice Scalia died, the Supreme Court heard oral argument in Friedrichs v. California Teachers Association, which raised the same question as Janus. The Court ultimately issued a 4-4 decision in that case that, practically speaking, and kept Abood on the books.  

We don’t know how each justice voted in Friedrichs, but it is not difficult to guess.

In Harris v. Quinn (2014), the Supreme Court refused to extend Abood to Medicaid home health care providers because they aren’t “full-fledged” public employees. Justice Alito’s majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas, was extremely critical of Abood, discussing at length its “questionable analysis.” Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, included a lengthy and vigorous defense of Abood.

Regardless of Justice Gorsuch’s silence during the argument, two facts about him weigh in favor of his voting that “fair share” laws are unconstitutional. First, while he hasn’t ruled in many cases yet, he has so far usually sided with the more conservative justices. Second, voting to overturn precedent is a big deal for any justice—and a new justice in particular. But while on the Tenth Circuit, Judge Gorsuch wasn’t shy about criticizing Supreme Court precedent. 

The argument otherwise went mostly as expected. The more liberal justices questioned the attorneys arguing in favor of overruling Abood about what other precedent might be vulnerable if the case is overruled, whether it is appropriate for the Court to overrule a decades-old case relied on by numerous state legislatures and local governments, and whether it makes sense to drain the resources of a union that helps make them an equal partner with management at the bargaining table.

The more conservative justices questioned the attorneys, favoring to keep Abood about whether the government-compelling speech (compelling public employees to pay union dues) is worse than the government-restricting speech, as well as whether the subject matter unions typically bargain over (like wages) are a political matter. The argument dispelled any notion Justice Kennedy might waver in his support of overruling Abood.

The tensest moment of the argument was when Justice Sotomayor asked the U.S. Solicitor General, who argued in favor of overturning Abood, how many times the United States has “flipped positions [in cases] this term.”

Agency fee is a foundational principle for public sector collective bargaining in the United States. Unions in agency-fee states receive significant funding as all union-eligible employees must pay their “fair share” of union dues. Overturning Abood will be a major change in the law and will weaken public sector unions.