Quick Points Mark Janus’ Attorney Provided in Oral Arguments


The last week of February ended with the gaveled submission of the United States Supreme Court case Janus v. AFSCME.  The Petitioner Mark Janus asked the country’s Highest Court to end the forced dues permissions found in the 1977 Abood v. Detroit Board of Education Supreme Court that compulsory union fees can exist while maintaining an individual’s liberty.

Listening to oral arguments can be like getting an hour-long civics lesson.  And, when it comes to the constitutional reasons that compulsory unionism deprives employees of their First Amendment Protections, Janus v. AFSCME certainly provides a quick course.

MESSENGER (National Right To Work Legal Defense Foundation Staff Attorney William L. Messenger for Mark Janus): I submit, Your Honor, it’s immaterial why an individual does not wish to support union advocacy. The First Amendment prohibits the government from probing into individuals’ subjective beliefs.

Boom, that’s it, the case should be over.  This statement remained hanging out there unchallenged.  At that moment, Justice Ruth Bader Ginsburg interrupted Mr. Messenger to posit a concern that giving employees a choice would hurt union bosses’ pocketbooks.

JUSTICE GINSBURG: So you’re saying that you do then recognize that the unions can be in a position where they will be — that the resources available to them could be substantially diminished?

Janus’ attorney implied that it would be unacceptable to diminish hardworking Americans’ First Amendment protections just to subsidize union budgets.

MESSENGER: Well, to the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that’s a perfectly acceptable result.

Below, Justice Kagan seemed to imply that even though a few million employees work under these forced-dues regimes that directly benefit union bosses, it is okay to keep things as they have been for the past few decades.

JUSTICE (Elena) KAGAN:  Our usual stare decisis doctrine [maybe a link here to define SD] makes it quite clear that reliance is an important consideration on the scales.

However, the fact that so many violations of the First Amendment are occurring is even more reason not to continue allowing the injustice.

MESSENGER: Reliance on an illegal practice, no. For example, in Arizona v. Gant, which involved searches of cars under the Fourth Amendment, the Court said the fact this was occurring in many places across the board is a reason for reversing it, and many individuals’ Fourth Amendment rights were being violated.

And so, in that instance, the prevalence of compulsory unionism in the states is a reason for reversing it.

The Janus Oral argument ended with perhaps the most obvious of all the non-constitutional arguments being proffered by AFSCME’s Attorney when he essentially said that if union bosses don’t get their cut of employees’ wages, then there will be chaos and violence orchestrated by government union officials.

FREDERICK (David C. Frederick for AFSCME Council 31): And what that means is that the key thing that has been bargained for in this contract for agency fees is a — a limitation on striking. And that is true in many collective bargaining agreements.

The fees are the tradeoff. Union security is the tradeoff for no strikes. And so if you were to overrule Abood, you can raise an untold specter of labor unrest throughout the country. [Emphasis added]

Messenger equated those threats with mafia-type protection threats that one might see on Sopranos re-runs or in an indictment filed against the Colombo crime family.

MESSENGER: The proposition that agency fees are the costs employees have to pay to prevent unions from striking, I submit is not only extremely attenuated but also would make agency fees effectively a form of protection money, the idea that the government needs to force its employees to subsidize unions or otherwise the unions will disrupt the government, and I submit that’s not an interest that this Court can accept as a compelling one for infringing on individuals’ First Amendment rights.

Forced unionism is an infringement on individuals’ First Amendment Rights.  With government employees, the infringement is clear.  Even now, the fear of a Janus victory has state and local politicians, who depend on these forced fees fueled political machines, looking for new and imaginative ways to force taxpayers to pay union bosses directly to keep the political gravy train running.

As the possibility of the 40-year-old wrongfully decided Abood case being overturned nears, union bosses are flexing their muscles and demanding politicians come up with schemes that will keep the money rolling into the nation’s largest political machines:  Big Labor.  Watch out, the newest class of forced-dues payers may become the taxpayers.