The Supreme Court Monday seemed poised to overturn a 41-year old ruling that requires some government workers to pay certain fees even if they're not union members, in a case that could hurt the political power of public employee unions.
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The rationale for the original ruling was that the so-called agency or "fair share fees" cover part of the cost of contract negotiations - and that all public sector employees benefit, even those who opt out of the union.
Mark Janus, an Illinois state employee who brought the present case, argues that a state law requiring him to pay the fees violates his First Amendment rights — because the unions engage in political activity and he might be forced to support views with which he doesn't agree.
“The fundamental issue is my right to choice,” Janus said on the Supreme Court steps after the court heard arguments.
Public-sector unions say the case could adversely affect millions of government workers across the country, and the nation's largest public employees union, the American Federation of State, County and Municipal Employees (AFSCME), is fighting to keep the current law.
In court documents, AFSCME defends the current system saying: "The unions’representative functions — and the fees that make those functions possible — serve the interests of the public employer and the State or locality that adopts such a labor-relations system.”
When it most recently re-considered the case, Abood v. Detroit Board of Education, in 2016, the Supreme Court split 4-4 after the death of Justice Antonin Scalia.
Given the strong signals that the Supreme Court has sent in recent years, it is almost certain to overrule the 1977 decision.
On Monday, conservative-leaning justices seemed to favor Mark Janus’ argument. Justice Neil Gorsuch, who became the ninth justice after Scalia, could prove to be the pivotal vote, but did not weigh in during arguments.
Justice Anthony Kennedy noted unions can act as a lobbying arm. "What we're talking about here is compelled justification and compelled subsidization of a private party — a private party that expresses political views constantly,” Kennedy said.
The four liberal justices expressed concern over the possible wide-ranging impact overturning the law could have on unions and those they represent.
Justice Elena Kagan asked about the many state statutes involved and the “livelihoods of millions of individuals” who would be affected “all at once.”
“When have we ever done something like that? What would be the justification for doing something like that?” Kagan said.
Justice Sonia Sotomayor questioned whether a ruling in favor of Janus could “do away with unions” altogether, while Justice Ruth Bader Ginsburg asked if the loss of fees wouldn’t result in loss of services.
“You’re saying that you do then recognize that the unions can be in a position where ... the resources available to them could be substantially diminished?” Ginsburg asked Janus’ attorney.
The case was originally brought by Illinois Gov. Bruce Rauner, a Republican.
“One-hundred percent of what a government union does is political by nature. Therefore forced payment of dues is political speech that’s forced against the choice of a government employee. That is wrong,” said Rauner.
At least 22 states have laws requiring “fair share” fees. In 28 states, “right-to-work” laws give workers the choice of whether to join a union and pay its fees.
Teachers and union leaders came to the Supreme Court steps to protest that changing the law would weaken unions.
Bonnee Breese Bentum, a teacher in the Philadelphia school district and member of the American Federation of Teachers, said as an African American woman, she has a lot to lose.
“My sole voice cannot carry the weight of the collective, therefore I totally disagree with the dismantling of collective bargaining and unions as is being heard in the Supreme Court,” Breese Bentum said. “This is not about one person, this is about the masses of Americans who are able to have upward mobility due to the jobs and the work that unions do every day,” she said.
On the other side was Bruce Aster, a high school teacher from San Diego who teaches American government.
“I think the union or collective bargaining idea is important for us, but there’s so much the union does, politically, that I disagree with,” Aster said. He's brought a similar case in California.
“I would love to be a part of a local [association] that was negotiating the nuts and bolts of what teachers are all about … rather than spending hundreds and hundreds of dollars on political stuff that I often disagree with,” he said.
As for Janus, he says he’s not anti-union, but pro “worker’s choice” — a common phrase on bright signs being carried by his supporters.
“I don't disparage unions. If people would like to collectively bargain, I think they should be able to. But I don't think they need to compel me or coerce me to pay a fee in order for me to have my job because if I don't pay I lose my job,” Janus said.
David Fredrick, the lawyer arguing on behalf of the union, said past cases show unions will suffer if the court rules against them.
“There will be a massive problem with 'free riders',” Frederick said after arguments.
“In my interpretation of what they're doing, their purpose is clearly to hurt unions and it is to give government free reign to act in an authoritarian way with respect to the workplace. To set wages, terms and conditions without input from workers — that seems clearly to be their agenda,” Frederick said.
A constitutional expert at the John Marshall Law School, Steven Schwinn, believes the Supreme Court will almost surely overrule the 1977 Abood decision.
"This will almost certainly deal a serious blow to public-sector unions in all ‘fair share’ states, especially if they must continue to represent non-members in collective bargaining," he said.
"If nobody pays dues, public-sector unions are likely to find themselves very short on resources," he said.
Opponents of the fees note that public-sector unions continue to operate even in states that currently do not require “fair share” fees. They contend there is no reason to think that unions will not continue to operate even if “fair share” requirements go away.
A decision is expected at the end of the court's term.