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 yesterday morning 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 (1997) 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? Continue reading