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The U.S. Supreme Court heard fiery arguments today in a case that could undercut or even gut labor unions in the U.S. When the court considered the issue last term, it deadlocked 4 to 4, so all eyes today were on the newest justice, Trump appointee Neil Gorsuch. As NPR's legal affairs correspondent Nina Totenberg reports, Gorsuch was uncharacteristically silent.
NINA TOTENBERG, BYLINE: Gorsuch asked not a single question, though his track record strongly suggests he'll likely vote against the unions. At issue in this case is what are called fair share fees. When public employees vote to unionize, those workers who do not want to join the union still have to pay these fees to pay for negotiating and administering a union contract that benefits everyone, not just union members.
The caveat is that non-union members who benefit from the contract do not have to pay for the union's political and lobbying activities. The Supreme Court came up with this compromise approach more than 40 years ago, but now anti-union groups are trying to have that decision overturned. They contend that fair share fees amount to compelled speech that violates the First Amendment guarantee of free speech. The case was initiated by Illinois' Republican governor, Bruce Rauner, who was at the Supreme Court today.
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BRUCE RAUNER: Government unions are organized against the interest of the common good. When a government union boss can give campaign cash to get a politician elected and then sit across the table from them after they're elected and negotiate terms, that's a conflict. It's in fact a bribe.
TOTENBERG: But Illinois' democratic attorney general, Lisa Madigan, said the law isn't really about the First Amendment because non-union members are free by law to say anything they want.
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LISA MADIGAN: This is a case where there are a small group of very well-funded right-wing extremists that want to eliminate unions throughout this country. If that happens, we are going to see an even steeper decline in the middle class. And we are going to see even greater economic inequality.
TOTENBERG: The legal debate inside the Supreme Court chamber was just as hot as lawyers for the anti-union Right to Work Foundation and the Trump administration told the justices they should reverse the court's 1977 fair share fee decision. The liberal justices noted that the court has approved many other mandatory fee arrangements such as student activity fees at state universities, mandatory state bar association fees and mandatory fair share fees for private sector unions in addition to public sector unions.
Justice Kagan - I don't think we've ever overruled a case where the reliance interests are remotely as strong as they are here. Twenty-three states, the District of Columbia, Puerto Rico - all would have their statutes declared unconstitutional at once. Thousands of contracts covering more than 10 million workers could be invalidated.
When the Trump administration's solicitor general, Noel Francisco, came to the lectern, Justice Sotomayor called the Trump administration's position radical. Justice Kagan, who once held Francisco's job, called it amazing that the U.S. government, which employs millions of people, is endorsing the notion of litigating every single grievance or dispute and negotiating wages on a one-on-one basis. Why can't a labor union do that, she said. It's the same subject, the same speech.
Illinois state Solicitor General David Franklin picked up that thread, contending that it is much easier for the state to deal with a well-resourced union that can be a partner. At that, Justice Kennedy, his tone laced with sarcasm, ripped into Franklin. It can be a partner with you in advocating for a greater-sized workforce against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness? Justice Breyer, his voice equally angry, noted that wages, hours and working conditions have been considered nonpolitical subjects for bargaining for a hundred years.
Chief Justice Roberts - how do you negotiate for wages and not affect the state budget? Lawyer David Frederick, representing the American Federation of State, County and Municipal Employees Union, said that some states set the budget and negotiate within that. Others require union contracts to be approved by the state legislature at the time the budget is set.
If you rule that fair share fees are unconstitutional, added Frederick, the effect will fall not just on unions but on municipalities, school districts, city councils and state legislatures across the country. The key thing that unions gave up in exchange for agency fees, he said, was the right to strike while a contract is in effect. And if the agency fees are gone, he warned, so, too, will be union peace. The fees are the tradeoffs for no strikes.
Indeed, after the argument, he pointed to the current strike by 277,000 teachers in West Virginia as evidence. The strike came just six months after the state enacted a right-to-work law that bars fair share fees. Nina Totenberg, NPR News, Washington.
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