Legal Docket: Union dues and who pays them

NICK EICHER, HOST: From member-supported WORLD Radio, this is The World and Everything in It for Monday, March 5th. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. The Supreme Court completed its February sitting with nine oral arguments, two of which we’ll cover today. The justices reconvene for the next slate of arguments the middle part of this month.

EICHER: Before Mary gets to arguments, though, we should tell you about three rulings the court handed down last week. 

The first involved certain immigrants awaiting deportation and their rights to bond hearings while they wait. A lower court had ruled they’re entitled to one every six months. But the Supreme Court said no, and overturned that ruling 5-to-3. That adds up only to eight, because Justice Elena Kagan recused herself from the case. Justice Stephen Breyer objected so strenuously to the ruling that he read part of his dissenting opinion from the bench.

REICHARD: A Michigan man lost his appeal involving a Native American tribe’s large gambling casino built near his rural home. David Patchak lost the peace and quiet he sought when the Match-E-Be-Nash-E-Wish band of Native Americans opened up a casino nearby. When he sued, Congress passed a bill to toss out pending litigation related to that property. Patchak argued that was an unconstitutional end-run around the judiciary, but the Supreme Court disagreed and said that’s precisely within the purview of lawmakers. The decision was 6-to-3.

EICHER: And the third ruling was unanimous. The court rejected any limits on the government’s power to claw back money fraudulently transferred prior to bankruptcy. Companies and individuals will tend to do that to avoid paying creditors.

REICHARD: Now, on to oral arguments.

This first case involves unions and how far you get to take your right not to join. Federal law says you don’t have to. But what about when a state compels public employees—union members and non-members alike—to pay a fee to the union?

Mark Janus is a child-support specialist with the Illinois Department of Healthcare and Family Services. He’s not in the public-employee union. But under state law, he has to pay a so-called “agency fee” to it. That law is consistent with a Supreme Court ruling in a case called Abood versus Detroit Board of Education from 41 years ago.

So part of Janus’ paycheck goes to the American Federation of State, County, and Municipal Employees union. Most people just call it AFSCME.  Janus and others sued. The case reached the High Court after a lower court dismissed it, citing the Abood precedent.

But Janus’s lawyer, William Messenger,  argues the precedent is outdated and wrong and ought to be overturned. Janus’s rights to free speech and association, Messenger says, outweigh the union’s need for funding.

Justice Elena Kagan said twenty-three states rely on Abood’s way of getting money to unions, and millions of workers do as well.

You’ll hear Justice Kagan here citing “stare decisis,” which emphasizes the crucial importance of consistent precedents.

Listen to this exchange with Messenger:

KAGAN: Our usual stare decisis doctrine makes it quite clear that reliance is an important consideration on the scales.

MESSENGER: Reliance on something that’s constitutional.  Reliance on an illegal practice, no.

… The illegal practice, to Messenger’s thinking, is the government forcing his client to speak a political message with which he disagrees.

Justice Ruth Bader Ginsburg underscored the funding dilemma unions face:

GINSBURG: It’s not just the people who oppose the union, but the people who support the union that say, “We have a chance to get out of paying fees to the union. Although not for ideological reasons, we’re going to pass and we’re not gonna pay the fees.”

MESSENGER: I submit, Your Honor, it’s immaterial why an individual does not wish to support union advocacy.  The First Amendment prohibits the government from probing into individuals’ subjective belief.

Justice Sonia Sotomayor saw that argument as covering for what is really going on.

SOTOMAYOR: You’re basically arguing do away with unions, because you are really taking, in essence, and saying every single employee decision is really a public-policy decision.

This question just keeps coming up: It’s been before the Supreme Court four times in the past five years alone. The last time was during the 2015 term, when it seemed likely a majority would overturn Abood. But Justice Antonin Scalia died before a ruling could be handed down. The remaining justices tied four to four and Abood stood.

Competing interests are at loggerheads here. Unions can level the playing field for fairness on the job: bargaining for better wages and working conditions, helping employees resolve disputes with management. But they’re also highly political, public-sector unions especially, and they favor Democrats. And that leaves a bad taste in the mouths of right-leaning union members.

Justice Anthony Kennedy homed in on the partisan politicization. Listen to this montage of exchanges between Kennedy and Illinois solicitor general David Franklin. Franklin argued in support of agency fees.

KENNEDY: What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.

FRANKLIN: However, agency fees are a condition of public employment because they pay for the workplace services. Not just collective bargaining … day to day workplace grievance resolution under an employment contract …

KENNEDY: Suppose that 80 percent of the fees of the union dues went to matters that were highly political in nature and 20 percent to negotiations and grievances.  Would that change your view?

FRANKLIN: I — I don’t know that it would, Your Honor.  You know, the Abood case, the Keller case, Beck, Ellis, all of them.

KENNEDY: Then it seems to me your argument doesn’t have much weight.

Union supporters panic at Justice Kennedy’s barbed comments, because the court is so obviously divided.

Evidence of panic was in a recent Washington Post editorial. Quoting here: “Many conservatives believe in the untrammeled rights of employers. They also can’t stand that organized labor usually backs Democrats.” End quote.

Well, no, they can’t. You can hear the reason why in this exchange between Justice Samuel Alito and the Illinois lawyer Franklin.

ALITO: When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?

FRANKLIN: You do, Your Honor, in some circumstances.  But what we’re talking about here is a compelled payment of a fee.  So it’s one step removed from compelled speech.

I can hear howls of irony over that. If Republicans despise the Abood precedent on union fees, Democrats feel roughly the same way about a case called Citizens United. In that case, the high court ruled that money is speech.

Justice Sotomayor helped bolster Franklin’s argument:

SOTOMAYOR: Any union member is free to get up publicly in any setting he or she wants to say they don’t agree with the position the union is taking, correct?

FRANKLIN: Correct.

… except some friend of the court briefs say incorrect.

Rebecca Friedrichs was lead plaintiff in that tied case — the year Justice Scalia died. Her brief sets out the price of acting against union orthodoxy: union bullying, unions fighting to keep workers ignorant of their right to opt out, unions gaming the system.

But Franklin pounded on the hard reality for unions: that when fees are only voluntary, union resources plunge.

Chief Justice John Roberts saw the flip side:

ROBERTS: Well, the argument on the other side, of course, is that the need to attract voluntary payments will make the unions more efficient, more effective, more attractive to a broader group of their employees.  What’s wrong with that?

What’s wrong, Franklin countered, is that conscientious dues payers will eventually drop out as their fees climb to make up for those who leave the union.

That raises the crucial question, Justice Kennedy interjected. Listen to this exchange with Frederick, for the union:

KENNEDY: Well, do you think that this case affects the political influence of the unions?


KENNEDY: 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?

FRIEDRICHS: Yes, they will have less political influence.

KENNEDY: Isn’t that the end of this case?


The justices can’t solve the true problem here — that is, concentrated power that corrupts, whether in the hearts of employers who don’t treat workers fairly, or the hearts of union bosses who misuse the paychecks of workers.

But with Justice Neil Gorsuch taking Justice Scalia’s seat, it looks like the votes are there now to end forced union fees.

Case two today arises from Kansas where twin brothers Los and Roosevelt Dahda were the masterminds of a drug operation that crossed state lines. And you know what that means: federal involvement.

The Drug Enforcement Administration sought to wiretap the cell phones of the brothers and others in the drug ring. A court granted it.

But the problem here is that the federal district court that granted the wiretap order said even if the phones left Kansas for another state, the DEA could keep on intercepting those phones.

The brothers argue the district court went beyond its jurisdiction to allow interception outside Kansas. They want that evidence suppressed.

But the government argues these days it’s just not practical to get a separate wiretap order for every single place a cell phone might wind up.  

Listen to lawyer for the United States, Zachary Tripp:

TRIPP: … our primary interest in this case is being sure that the Court not adopt Petitioner’s very extreme rule whereas – as long as there is any statutory violation of any kind apparent on the face of an order, then you automatically and mechanically need to suppress all of the evidence obtained under that order no matter what, that would be very damaging.

The facts of this case show the government didn’t actually use evidence intercepted outside Kansas. So under the words of the law involved, there was no violation.

But the real issue is that the law in question was passed in 1968, before mobile phones. Landline phones didn’t physically traverse state lines, so geographic limits on wiretaps were easy.

This is another case of the law lagging behind technology. Thousands of wiretap orders are issued per year allowing law enforcement to monitor calls and text messages.

Most of what they hear has nothing to do with crime, and innocent communications get swept up in that. So the justices have the task of fitting privacy protections within newer technologies.

Hard to say where the justices will come down in this case.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) In this April 4, 2017 photo, the Supreme Court Building is seen in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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