Justice Anthony Kennedy spent his morning impersonating Rush Limbaugh

The fix is in against public sector unions.

WASHINGTON, DC - APRIL 10:  U.S. Supreme Court Associate Justice Anthony Kennedy delivers remarks before administering the judicial oath to Judge Neil Gorsuch during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - APRIL 10: U.S. Supreme Court Associate Justice Anthony Kennedy delivers remarks before administering the judicial oath to Judge Neil Gorsuch during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Monday morning, in one of the Supreme Court’s men’s rooms, I watched a man get arrested.

The man was unfailingly polite, and he wore a shirt suggesting that he was there to protest what the Court is about to do to public sector unions in a case called Janus v. AFSCMEIndeed, while the swarm of police officers surrounding the man made it impossible for me to question him, he almost certainly came to the Supreme Court this morning intending to be arrested.

It was the perfect metaphor for what would happen in the Supreme Courtroom just a few minutes later. Attorneys hoping to protect the labor movement from an impending disaster arrived to put up whatever resistance they could muster, but they also know how Janus is almost certain to end. And it will be a long-awaited victory for some of the Court’s most conservative members.

If there was any doubt how this case would play out, that doubt was erased almost as soon as Justice Anthony Kennedy opened his mouth to attack the arguments raised by Illinois Solicitor General David Franklin, one of the attorneys arguing on the union’s side in Janus. As the argument progressed, Kennedy sounded less and less like a judge and more and more like an irate tea partier railing against “massive government.” The Court’s ostensible swing justice — the closest thing it has to a moderate conservative — sounded like Rush Limbaugh.

The core issue in Janus are “agency fees,” which unions charge non-members to recoup the cost of bargaining on their behalf and otherwise representing these non-members. By law, unions must bargain on behalf of every worker in a unionized shop, regardless of whether each worker opts to join the union. Thus, non-members can potentially reap significant benefits from the union — on average, unionized workers are paid almost 12 percent more than similar workers in non-union workplaces — without contributing to the cost of gaining these benefits.


Eventually, such free-riding by non-members can cause a union to collapse, as the union will no longer have the funds necessary to support its operations.

To prevent such free-riding, union contracts often contain a provision requiring non-members to pay agency fees, which reimburse the union for the cost of representing that non-member. The plaintiff’s attorneys’ core contention in Janus is that these agency fees violate the First Amendment, at least with respect to public sector unions, because they compel non-union members to subsidize advocacy that they may not agree with.

A major problem with this argument, as quickly becomes clear as Justices Ruth Bader Ginsburg and Sonia Sotomayor being to pressure William Messenger, a lawyer for the anti-union National Right to Work Legal Defense Foundation, is that Messenger’s argument lacks a limiting principle. If unions cannot charge agency fees to non-members, why can public universities charge activities fees to students who may not agree with all the speakers those fees help bring to campus? Why can states require lawyers to join bar associations that may advocate for changes in legal procedures that individual lawyers disagree with?

Or, for that matter, why is collective bargaining different from individual bargaining? If a single employee requests a raise, why is that not a matter of public concern that is controlled by the First Amendment? What if all the employees at a particular government employer request higher wages, but they do so without the help of a union?

Messenger did not have good answers to these questions. His primary argument is that the “scope and scale” of collective bargaining is much greater than individual bargaining — some collective bargaining agreements might concern hundreds of millions of dollars worth of salaries — and that the sheer bigness of the amount of money at stake makes Janus a different case than the individual policeman who wants a raise.


Yet, as Justice Stephen Breyer noted towards the end of the argument, there’s no principled way to draw a line between a request for a little bit of money and a request for a lot of money. “They all affect the budget,” Breyer explains. Each individual dollar could be the one that pushes a struggling municipality over the edge into bankruptcy. And each dollar paid to any individual will have to be either taken from another government program or paid for in higher taxes.

If bigness is the test, it is far from clear how many dollars must be at stake before the First Amendment is implicated. And certainly the Constitution itself provides no guidance on what the specific number may be.

Yet, while the argument against agency fees has some serious practical and doctrinal hurdles to overcome, that is unlikely to matter to a majority of the Court.

Justice Kennedy likes to play devil’s advocate in contentious cases, asking tough questions of both sides, but typically pressing harder on the side he expects to vote again. A good rule of thumb in oral arguments is that, when Kennedy appears to be angry at one party, he wants that party to lose.

And, on Monday morning, Kennedy appeared ready to rip off the pro-union attorneys’ limbs with his bare hands.

Franklin likened Janus to a long line of cases holding that the First Amendment does not apply with the same force when the government interacts with its own employees than when it interacts with the general public. Indeed, in one of those cases, Kennedy himself wrote that “government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”


But the Tony Kennedy who showed up to work on Monday seemed unmoved by what Tony Kennedy wrote in 2006. His prior decision, Kennedy argues, involved government employees speaking on the government’s behalf. Janus involves a form of compelled speech, and that makes it different.

As the argument progresses, Kennedy grew less and less patient — and less and less judicial — in his questioning of Franklin and David Frederick, another lawyer cursed to argue this case on behalf of unions. Indeed, at one point, Kennedy slips into the kind of rant that is more commonly heard on Fox News than in a courtroom of any kind. The unions are advocating for “massive government” and ‘increased taxes,” an irate Kennedy complains. He appears to have no intention of siding with the unions.

With Kennedy is his pocket, the Janus oral argument turns into a kind of victory lap for Justice Samuel Alito, who first raised the possibility of nuking public sector agency fees in 2012’s Knox v. SEIU and has fought for this outcome ever since. In one particularly absurd turn, Alito even implies that the unions should lose this case because of a film that won six Oscars in 1966.

“Throughout history,” Alito tells Franklin, “many people have drawn a line between restrictions on their speech and compelled speech.” The justice’s point appears to be that, even though there are many cases holding that government employers can restrict their employees’ speech — an employee can even be fired in some cases for not toeing the government’s line — Janus is somehow worse because it involves an allegation of “compelled speech.”

As a matter of constitutional text, Alito’s claim is nonsense. The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” The freedom not to have your speech restricted by government sits at the heart of the First Amendment’s text. The right not to be compelled to speak, while important, is only implicit in the Constitution’s words.

Indeed, when pushed to support his claim that compelled speech cases deserve more protection than casing involving official government censorship, Alito does not cite the Constitution at all. He doesn’t even site a court case. Instead, he cites A Man for All Seasons, a film about Sir Thomas More, who refused to endorse King Henry VIII’s view of divorce during the sixteenth century.

The real Thomas More is less of an admirable figure than this film suggests. Among other things, he was personally involved in several investigations that led so-called “heretics” to be burnt at the stake during his time as Lord Chancellor of England. But, like the filmmakers behind A Man for All Seasons, a majority of the Supreme Court appears much more interested in myth-making than in carefully parsing past decisions.

The only uncertainty in Monday’s hearing arises from the uncharacteristic silence of Neil Gorsuch, who occupies the seat Senate Republicans held open for more than a year until Donald Trump could fill it. Gorsuch claims to believe that the Constitution should be read as it was originally understood at the time of its framing. And there is powerful evidence that, at the time of the framing, Janus would have been an extraordinarily easy case. As Fredrick writes in one of the briefs submitted in this case, “the Founders recognized that public employees had ‘no right to object to conditions placed upon the terms of employment – including those which restricted the exercise of constitutional rights.'” So, if Gorsuch really believes what he claims to believe, he should be a vote in favor of the unions.

But originalism is an easily malleable method of interpretation, and Gorsuch has shown no inclination that he is willing to break will his fellow conservatives in a major case such as this one.

For unions, resistance is likely to prove futile in this Supreme Court, whether you are a single protester in a bathroom, or a litigant in a major case.