WASHINGTON — A crucial voice was silent at Supreme Court arguments on Monday in a case that could deal a sharp blow to public unions. Justice Neil M. Gorsuch, who almost certainly holds the decisive vote, asked no questions, leaving some doubt, if only a glimmer, about whether he would join the court’s conservative majority to rule that forcing workers to support public unions violates the First Amendment.
Justice Gorsuch generally votes with the court’s conservatives, and he is likely to do so in this case. But his silence during the argument meant that observers knew no more about his thinking by the time it ended than when it had begun.
Two years ago, the court seemed poised to rule against public unions, but it deadlocked 4 to 4 after the death of Justice Antonin Scalia. Monday’s case, Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, presented the same legal issue. The only real difference was that Justice Gorsuch had taken Justice Scalia’s place.
Once again, the heated questioning during Monday’s arguments confirmed that the court was sharply divided along ideological lines.
The court’s more conservative members said that requiring workers who choose not to join public unions to pay for collective bargaining and similar activities is an affront to their right to free speech.
“When you compel somebody to speak, don’t you infringe that person’s dignity and conscience?” Justice Samuel A. Alito Jr. asked.
The court’s more liberal members said that states should have broad leeway in managing public workplaces. They added that a decision against the unions would require overruling a 40-year-old precedent, striking down more than 20 state laws, creating confusion about thousands of union contracts and disrupting the lives of millions of workers.
“I don’t think that we have ever overruled a case where reliance interests are remotely as strong as they are here,” Justice Elena Kagan said.
A decision overruling the precedent would conclude a decades-long political and legal campaign by conservative groups aimed at weakening public-sector unions. Those unions stand to lose fees from workers who object to the positions the unions take and from those who simply choose not to join while benefiting from the unions’ efforts on their behalf.
Justice Ruth Bader Ginsburg reflected on the consequences of ruling against the union in the case before the court. “It drains it of resources that make it an equal partner” with the government in negotiations, she told William L. Messenger, a lawyer for Mark Janus, an Illinois child support specialist who objected to positions taken by his union in negotiations. “And then you’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces.”
Near the end of the argument, Justice Sonia Sotomayor said the case represented an existential threat to the labor movement. “You’re basically arguing, ‘Do away with unions,’ ” she told Mr. Messenger.
The case was a challenge to an Illinois law that requires government workers who choose not to join unions to “pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.” More than 20 states have similar laws.
The Supreme Court ruled that such laws are constitutional in Abood v. Detroit Board of Education, a foundational 1977 decision that made a distinction between two kinds of compelled payments. Forcing nonmembers to pay for a union’s political activities violated the First Amendment, the court said. But it was constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”
Conservative groups have long urged the court to overrule the Abood decision, and they have repeatedly gotten close to their goal. In 2014, the court stopped just short of overruling the decision.
When the court revisited the issue in 2016, the Obama administration argued in favor of the unions. The Trump administration switched sides in the new case, prompting a comment from Justice Sotomayor to Solicitor General Noel J. Francisco.
“This is such a radical new position on your part,” she said.
Justice Kagan noted that the administration’s position could open the federal government to First Amendment challenges in various kinds of workplace disputes. “It strikes me as a very unusual position for the government to be taking,” Justice Kagan said, perhaps reflecting on her own experience in representing the government as solicitor general in the Obama administration.
Justice Anthony M. Kennedy, who is the court’s most ardent supporter of broad First Amendment rights, made clear that he had no patience with mandatory fees, calling them “compelled subsidization of a private party, a private party that expresses political views constantly.”
The lawyers in the case gave varying answers to questions about what would happen if the mandatory fees were eliminated. “When these kinds of obligations of financial support become voluntary, union membership goes down, union density rates go down, union resources go down,” said David L. Franklin, Illinois’s solicitor general, who argued in support of the union.
“When unions are deprived of agency fees, they tend to become more militant, more confrontational,” he added. “They go out in search of short-term gains that they can bring back to their members and say, ‘Stick with us.’”
Chief Justice John G. Roberts Jr. said there were arguments on the other side.
“The need to attract voluntary payments will make the unions more efficient, more effective, more attractive to a broader group of their employees,” the chief justice said.
David C. Frederick, a lawyer for the union, said it should be free to fight for higher wages. “Most public servants are underpaid,” he said, “and I will stipulate to that before this body.”
That elicited a smile from Chief Justice Roberts, who was a successful lawyer in private practice and took a big pay cut when he became a judge.
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