With the justice holding the decisive vote silent, a divided Supreme Court sparred Monday over a case that could undermine the financial footing of labor unions that represent government workers.
The justices heard arguments in a challenge to an Illinois law that allows unions representing government employees to collect fees from workers who choose not to join.
Amid colorful, occasionally angry comments from his colleagues, Justice Neil Gorsuch asked no questions during the hourlong session.
The court split 4-4 the last time it considered the issue in 2016 following the death of Justice Antonin Scalia. Gorsuch joined the court in April and has yet to weigh in on union fees. Organized labor is a big supporter of Democratic candidates and interests. Unions strongly opposed Gorsuch's nomination by President Donald Trump.
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The unions say the outcome could affect more than 5 million government workers in 24 states and the District of Columbia.
In many respects, Monday's arguments were a replay of what happened in 2016, when the court took up so-called fair share fees and appeared to be ready to overrule a 1997 high court decision that serves as their legal foundation. But Scalia's death left the court tied, and a lower court ruling in favor of the fees remained in place.
"You're basically arguing, do away with unions," Justice Sonia Sotomayor told William Messenger, a lawyer with the National Right to Work Legal Foundation. The group is representing Illinois worker Mark Janus in his Supreme Court challenge.
On the other side, Justice Anthony Kennedy, who has voted against unions in past related cases, scoffed at labor's argument that there is a difference between collective bargaining over government employees' pay and benefits, and unions' political activities, which nonmembers do not have to support.
If the unions lose, won't they have less political influence, Kennedy asked David Frederick, representing the American Federation of State, County and Municipal Employees Illinois affiliate. Yes, Frederick said.
"Isn't that the end of this case?" Kennedy replied.
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Janus says he has a constitutional right not to contribute anything to a union with which he disagrees. Janus and the conservative interests that back him contend that everything unions representing public employees do is political, including contract negotiations.
Janus and Illinois Gov. Bruce Rauner, a Republican who has had a contentious relationship with the state's unions since taking officer in 2015, were both in the courtroom Monday. "I am confident that they will side with free speech for the people of our great nation," Rauner said of the justices, following the arguments.
The Trump administration is supporting Janus in his effort to persuade the court to overturn its 1977 ruling allowing states to require fair share fees for government employees.
The unions argue that so-called fair share fees pay for collective bargaining and other work the union does on behalf of all employees, not just its members. More than half the states already have right-to-work laws banning mandatory fees, but most members of public-employee unions are concentrated in states that don't, including California, New York, and Illinois.
American Federation of Teachers President Randi Weingarten said wealthy conservative business interests are behind the legal challenge. "They're attacking us because they see a strong labor movement as a threat to their wealth and power," Weingarten said.
Labor leaders fear that not only would workers who don't belong to a union stop paying fees, but that some union members might decide to stop paying dues if they could in essence get the union's representation for free.
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Justice Ruth Bader Ginsburg suggested it would be natural for union members to say "I would rather keep the money in my own pocket," potentially seriously cutting union revenues.
"I submit that's a perfectly acceptable result," Messenger said.
The lawyers' arguments and some of the justices' comments appeared to be pitched to attract Gorsuch. Frederick, a former law firm colleague of the justice, made an originalism appeal on the unions' behalf, borrowing a typically conservative argument that judges should look to what the Constitution meant when it was written.
Gorsuch has spoken of his fidelity to reading the Constitution and laws as they were originally intended.
But Justice Samuel Alito, who has written two opinions attacking fair share fees, said Frederick's argument was "something I thought I would never see in a brief filed by a public employee union."
Justices Stephen Breyer and Elena Kagan stressed again and again how much might be upset if Janus wins, which might appeal to Gorsuch if he is reluctant to overturn the 1977 decision, Abood v. Detroit Board of Education.
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"Property and contract rights, the statutes of many states and the livelihoods of millions of individuals affected all at once," Kagan said. "When have we ever done something like that?"
A decision in Janus v. AFSCME Council 31, 16-1466, is expected by late June.