High Court Hypocrisy

Justice Neil Gorsuch will likely cast the pivotal vote in a case involving mandatory union dues. Mark Janus is a state employee in Illinois, and represented by a union, AFSCME. State law does not require Janus to join the union, but requires government workers who choose not to join a union to “pay their proportionate share of the costs of the collective bargaining process.” This is called “fair share,” meaning that Janus must pay for the benefits his union bargains for him.

Janus objects to paying any dues, claiming this is coerced speech. He disagrees with the political views of his union; and he does not want to pay to support these views. Under “fair share,” he doesn’t pay anything toward the union’s political campaigns. But the very act of bargaining Janus’s labor agreement is inherently political. In effect, Janus is arguing he cannot be compelled to pay dues that support his union’s so-far successful efforts to ward-off steep wage and benefit cuts proposed by Gov. Rauner.

But Janus is likely to win his high profile case before the Supreme Court. Last year, without Justice Scalia, the Court deadlocked 4-4 in a similar case. Neil Gorsuch is widely expected to break the tie, if he agrees that Janus has a First Amendment right to pay nothing for the union representation he receives.

That Neil Gorsuch will probably cast the tie-breaking vote is a matter of high hypocrisy. On Thursday, he gave a speech at the Washington Trump International Hotel. Not one to fuss over appearances that he favors conservative groups— nor does he mind filling the coffers of the President’s ritzy business down the street from the White House— Gorsuch spoke to the The Fund for American Studies, a conservative group. Only 200 guests attended the invite-only luncheon.

Another Illinois legal case puts the pending ruling in perspective. Patricia Rupcich, a cashier at a Jewel grocery store, was fired for taking a 25-pound of birdseed from the store without paying. She said she forgot to pay for it. The employer didn’t believe her. In any event, the company had negotiated an iron-clad rule with the union: any and all cases of taking merchandise without paying is a terminable offense. The union did not challenge her termination, as it could have, in an arbitration case.

But a federal appeals court ruled that the union violated its legal duty to represent Jewel employees. The court went on to speculate, “a reasonable juror could find on the record before us that had Local 881 followed its CBA‐mandated grievance procedure and proceeded to arbitration, Rupcich would have probably prevailed in getting her job back.” The ruling meant the union would either be required to pay for arbitration, or pay damages to the employee that Jewel fired for theft.

Looking at these two Illinois cases— Janus’s effort to strike down fair share union dues, and Rupcich’s ruling that requires a union to pursue grievances as a matter of law— unions in Illinois will likely have less money in dues, and certainly more expenses for arbitrations that they don’t want to pursue. And the deciding vote in the union dues cast might be cast be a justice who has blurred the line between judicial neutrality and crass politicking.