With Justice Neil M. Gorsuch on the bench, groups advocating for the change are hopeful he will provide a tiebreaking vote.
With a conservative majority back in place, the Supreme Court on Thursday announced it will once again hear a challenge to the required payment of fees to public-employee unions, an important but controversial tool for the American labor movement.
Some public employees say their free-speech rights are violated by the requirement, and conservative legal activists have at least twice asked the Supreme Court to overturn a decades-old precedent that allows “agency fees.” Approximately 20 states allow them.
It appeared they would be successful the last time the issue was before the court, in January 2016. But Justice Antonin Scalia died a month later, and the court announced it had split 4 to 4 on the issue.
Now Justice Neil M. Gorsuch has taken Scalia’s place, and the groups advocating for the change are hopeful he will provide the fifth vote.
“We are now one step closer to freeing over 5 million public sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government,” National Right to Work Legal Defense Foundation President Mark Mix said in a statement.
The lead plaintiff in the case the court accepted is Mark Janus, a child-support specialist at the Illinois Department of Healthcare and Family Services.
Union leaders responded to the court’s decision to take the case by saying the real players behind the effort are those who want to blunt the effect of public-employee unions, the most muscular part of today’s labor movement.
“The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people,” said Lee Saunders, president of the American Federation of State, County and Municipal Employees.
“The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to deliver yet another attack on working people by striking at the freedom to come together in strong unions,” he said.
The case is likely to be the most important of the year for organized labor, and it adds to a docket already filled with controversial subjects, such as partisan gerrymandering, the requirement that objecting wedding vendors work for same-sex couples, and immigrant rights.
The case involves only public-employee unions — not private workers — but those unions are the strongest segment of an organized labor movement that is increasingly tied to the Democratic Party. At the same time, Republican governors across the nation have become embroiled in high-profile battles with the public-employee unions in their states.
Challengers are directly asking the court to overturn a 1977 decision, Abood v. Detroit Board of Education, that favored the unions. That ruling said that states could allow public-employee unions to collect fees from nonmembers to cover the costs of workplace negotiations but not to cover the union’s political activities.
The unions say losing those fees would be a heavy blow because there is no incentive for workers to pay for collective-bargaining representation they could receive free. About 20 states, including California, allow what the unions like to call “fair-share” fees.
But conservative justices have sharply questioned whether it was possible to separate public-employee negotiations from the kind of public policy questions — teacher salaries and classroom sizes, for instance, and the tax dollars that must be raised to pay for them — that are raised.
The case is Janus v. AFSCME Council 31.
