Reading The Gorsuch Tea Leaves In Key Union Case

Lawyers recently finished arguing a potentially historic workers’ free speech case before the U.S. Supreme Court and pundits are buzzing about Justice Neil Gorsuch’s silence during the proceedings.  However, Gorsuch’s views on individual liberty are clear and that’s not good news for the public employee unions.

The case, Janus v. American Federation of State, County and Municipal Employees (AFSCME), involves Mark Janus, a non-union Illinois state employee, who says that the Illinois law that forces him to pay fees to AFSCME to bargain on his behalf violates his First Amendment free-speech rights since the issues negotiated are inherently political and thus force him to subsidize the political activities of a group he doesn’t support.

Justice Anthony Kennedy laid out the heart of the case saying, “What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”

Justice Samuel Alito indicated that it was worse to force someone to speak than simply restricting their speech: “When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”

When the lawyer for the state of Illinois tried to argue that the state had an interest in working with “a stable, responsible, independent counterpart that’s well-resourced enough that it can partner in the process of not only contract negotiation,” Justice Kennedy broke in and devastatingly finished his thought by saying, “It can partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes.”

Illinois’ lawyer then admitted “that many of the topics that come up at the bargaining table with public employee unions have serious fiscal and public policy implications.”  In other words, public-employee-union negotiations and the resultant contracts are inherently political.

And when Justice Kennedy asked the lawyer for AFSCME, “If you do not prevail in this case, the unions will have less political influence,” the union attorney replied, “Yes, they will have less political influence,” to which Kennedy responded, “Isn’t that the end of this case?”

The questioning by the various justices indicated that the usual conservative-liberal divide on the court will occur, with Justice Gorsuch as the deciding vote. So where will he come down?

In the famed Hobby Lobby case, where the federal government forced companies to provide insurance plans that included contraception, Gorsuch, as a federal appeals court judge, argued against government compelling business owners to act in violation of their First Amendment rights based on their sincerely held religious beliefs.
According to Gorsuch, government can’t force people into a “Hobson’s choice—an illusory choice where the realistically possible course of action trenches on an adherent’s sincerely held religious belief.” Although Hobby Lobby involved the establishment clause of the First Amendment, the underlying liberty principle that government cannot compel individuals to support activities that violate any of their First Amendment rights is the same as in Janus.

While defenders of the union collective-bargaining status quo claim that a 1977 Supreme Court case, Abood v. Detroit Board of Education, which authorized public-employee unions to collect fees from non-union members, undercuts Janus and his First Amendment arguments, observers of Gorsuch note that he is willing to upset the apple cart under the right constitutional conditions.

In its analysis of Gorsuch’s judicial philosophy, the CATO Institute notes that Gorsuch’s opinions “reveal a commitment to questioning precedent that does not comport with the original meaning of the Constitution,” and “he is willing to engage claims of government overreach to make sure that the precedent is applied in the right way or to push for its reversal.”

According to Justice Kennedy, at stake in Janus is a system where states “mandate people that object to certain union policies to pay for the implementation of those policies against their First Amendment interests.”  Given the way the Janus case is stacking up, and with Justice Gorsuch’s judicial history and thinking, it appears that a new era is about to be opened up, where individuals’ First Amendment rights, not the special interests of government and public-employee unions, will be prioritized.

Lance Izumi is Koret senior fellow in education studies and senior director of the Center for Education at the Pacific Research Institute.  He is the author of the 2018 publication “An American Education Agenda.”

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.