For many, one of the existential threats of this political moment is what would happen to the nation if Justice Anthony Kennedy, who is 81, decided to hang up his robe while Donald Trump is still in office. Court watchers obsess over the question because it’s a near certainty that Trump and his judicial-selection handlers aren’t interested in another Kennedy — not after the victory lap they took with Justice Neil Gorsuch. But also because the justice is an oddly polarizing figure without being polarizing at all — at once beloved and disliked by both conservatives and liberals for how he votes in contentious cases. There probably isn’t a single person who follows the Supreme Court who doesn’t have a love-hate relationship with Kennedy.
Everything about Janus v. American Federation of State, County and Municipal Employees is bound to keep that flame alive. As its name suggests, the case deals front and center with public-sector unions, but the future of organized labor is only one of many strands that intersect in the dispute (the specific question at hand is whether unions can charge fees to workers who benefit from labor agreements, even if they opt out of membership). Another aspect of the case is the ongoing weaponization of the First Amendment by powerful business interests. Or the politics behind the controversy, and how an adverse ruling could sap the fortunes of an important bloc that overwhelmingly supports Democrats. There’s also a doctrinal discussion about whether the Supreme Court cares or not about stare decisis, or its tradition of adhering to and reaffirming its own precedents.
At the center of all of these conflicts sits Kennedy, the court’s perennial nerve center — and to a lesser degree, Gorsuch, the court’s newest member. In 2016, the last time public unions dodged a bullet in Friedrichs v. California Teachers Association, it was only because Justice Antonin Scalia died while the case was pending and his surviving colleagues, split four to four, couldn’t decide it. Since that day, it’s been a foregone conclusion that the Supreme Court’s more conservative members would get their do-over, as they’ve been telegraphing for at least half a decade that some of the fees that sustain public unions should be on the chopping block — in the Roberts court, anything that is compelled by the government runs the risk of being struck down.
Kennedy isn’t one to keep his feelings to himself when something troubles him, and during today’s Supreme Court arguments over Janus, he made no secret of his disdain for government workers who organize. Just as the solicitor general of Illinois, one of the lawyers defending the workers, made his case that going to the negotiating table with a “stable, responsible, independent counterparty,” Kennedy made it plain that this couldn’t possibly be a good thing for a state. Unions “can be a 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 bond indebtedness, for increasing taxes,” Kennedy said, as if reading off of a laundry list of conservative talking points. “Is that the interest the state has?” When that didn’t get a satisfactory response, he retorted: “Doesn’t it blink reality that that is what’s happening here?”
When it was time for Kennedy to confront the lawyer for AFSCME — the largest public-employee union in the country — Kennedy again seemed perturbed by the idea that a group of state workers would band together to wield what he called “political influence” to make demands for a plurality of its members, as if that couldn’t possibly be constitutional. “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence, yes or no?” Kennedy asked. When the lawyer conceded the point, the justice left no doubt as to where he stood: “Isn’t that the end of this case?”
To Kennedy, anything that infringes on freedom as he sees it — whether it be a state forbidding a same-sex couple from marrying or preventing a corporation from spending unlimited sums in an election — is presumptively unlawful under the First Amendment. Under this very broad conception of liberty, there’s no doubt that fair-share fees — the fees that every public-sector union charges every member of a bargaining unit, even those who opt out of the union — is unconstitutional. Which would be consistent with his prior votes in other cases where the livelihood of unions contra the professed liberties of dissatisfied workers has been at stake.
Gorsuch, for his part, didn’t say a word during the entire Janus hearing, probably because he doesn’t want the commentariat assuming that he’s the fifth vote that Scalia would’ve cast in Friedrichs. He already tried a similar shtick in the first big-ticket case he heard on the bench, Trinity Lutheran Church v. Comer, but here the stakes are higher for him — in part because the text of the First Amendment is just as silent as he was on the issue of labor relations. That puts him in a tough spot: He either joins his conservative colleagues fully without writing a single thing, or else tries to stake his own originalist path as to why the Constitution forbids unions from charging would-be free riders a small fee for collective bargaining and other services. (Early in his tenure, Scalia didn’t exactly have a problem with making dissenting nonunion members pay their fair share, but his views seemed to have evolved even if his notion of fixed-in-time constitutional meaning didn’t.)
Because conservatives hold the ball in Janus, it will fall to the Supreme Court’s more liberal bloc to attempt to limit the damage to public unions, if it can be limited at all. Here, it may take someone like Justice Stephen Breyer, a pragmatist who is known for compromise, to rein in Kennedy — or at least to sound the alarm about the perils of overruling Abood v. Detroit Board of Education, the 40-year-old precedent that has allowed fair-share union fees to survive unscathed. Short of scrapping settled case law entirely, Breyer seemed keen on conscribing it in a way that takes political lobbying out of the picture. “Can you limit it to wages, hours, working conditions, where mandated as subjects of compulsory bargaining by the state — those three terms have a hundred years of history written around them,” he suggested. “It shouldn’t be hard to administer [that system] and should keep the things like lobbying and so forth out of it.”
As a result of these countervailing forces, this case isn’t very different from other free-speech cases the Supreme Court has entertained in recent years. The nagging perception, thanks to a very effective public-relations campaign, that the well-oiled machine behind Janus and other anti-labor cases jumps into these disputes because of an unflinching commitment to the freedoms embedded in the First Amendment is a legal fiction. The reality, as the heated exchanges inside the courtroom made clear, is that the fate of public-sector unions is as political a controversy as they come. A case where, once again, the Supreme Court and Kennedy have a chance to chart the course of powerful political actors and maybe democracy itself.
This post originally stated that Justice Kennedy was 84. He is 81. We regret the error.
