On September 28, 2017, the Supreme Court of the United States announced that it will grant certiorari in a case that will test the constitutionality of requiring mandatory payment of “fair share” union dues to be paid by non-member, non-consenting public sector workers. The outcome of Janus v. AFSCME could go a long way to determining the future financial viability of public sector unions to engage in lobbying and politics outside the confines of collective bargaining and contract administration, including grievance handling. The Court deadlocked on that issue, 4-4, following the death of Justice Antonin Scalia, and the issue was returned to the U.S. Court of Appeals for the Ninth Circuit in the case of Friedrichs v. California Teachers Association. The issue will be back before the Court in Janus v. AFSCME, where the Court will decide whether to reverse or modify its precedent in Abood v. Detroit Board of Education (1977), which upheld the payment of fair share union dues in the public sector.

Why Is This Case Important?

If you are strictly a private sector employer, why is this issue important to you? For years, private sector union density has been steadily declining, reaching its current nadir of 6.4 percent in 2016. On the other hand, total union membership density (10.7 percent) has been propped up by the fairly steady union density among public sector employees, most recently 34.4 percent in 2016—more than five times the private sector rate. Recent actions by state legislatures in adopting state right-to-work laws, limiting collective bargaining rights, and reducing public sector pensions has, to an extent, begun eroding the power of public sector unions. If the Supreme Court bans the mandatory collection of public sector union dues among non-members, it could have a significant effect on the financial ability of public sector unions to prop up private sector unions.

Current Composition of the Court: Is Justice Gorsuch “Scalia Lite”?

The current composition of the high court is made up of a so-called “progressive wing” of associate justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor; a “conservative wing” of Chief Justice John Roberts and associate justices Clarence Thomas, Samuel Alito, and Neil Gorsuch; and a “swing vote” in the person of Justice Anthony Kennedy. Although on many issues members of the two wings may cross philosophical lines, on the most significant cases the 4-4-1 pattern is generally upheld with Justice Kennedy's vote more often siding with the conservatives, as is likely to be the case in Janus v. AFSCME.

Thus far in his first nine months in office, the single most important action, arguably, by President  Donald Trump has been his nomination (and U.S. Senate confirmation) of Neil Gorsuch to fill the vacancy on the Court created by the death of Justice Antonin Scalia. (The confirmation of Gorsuch restored a 5-4 conservative majority on the Court.) Justice Gorsuch, whose judicial philosophy was touted as potentially being “Scalia lite,” was thought to be taking up Scalia's originalist philosophy of adhering strictly to the original text of the U.S. Constitution.

If his first few months on the Court are any indication, Justice Gorsuch is not “lite” in his originalist judicial philosophy and he does not take a back seat to his predecessor Justice Scalia. One early test of Justice Gorsuch’s judicial philosophy will come in Janus v. AFSCME, where Justice Scalia was expected to be the tiebreaking vote in favor of prohibiting mandatory “fair share” public sector union dues for non-members based on the First Amendment.