Key-vote Gorsuch mum on union fees

A divided Supreme Court on Monday debated a case that could threaten the survival of many public-employee unions — but the justice whose vote will likely decide the case remained silent.

The court heard arguments in a challenge to an Illinois law that allows unions representing government employees to collect oftensteep fees from workers even if they choose not to join.

Amid sometimes 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.

The conservative Gorsuch joined the court in April 2017 and has yet to weigh in on mandatory union fees, but government-employee unions opposed his appointment by President Trump for fear he would side with his fellow conservatives.

The unions said the outcome could affect more than 5 million government workers in 24 states and the District of Columbia.

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 highcourt decision that serves as their legal foundation.

But Scalia’s death just over two years ago left the court tied, allowing a lower-court ruling in favor of the fees to remain 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 represents 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 was 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 responded. “Isn’t that the end of this case?” Kennedy asked.

Janus says he has a constitutional right not to contribute anything to a union with which he disagrees. He and the conservative interests that back him contend that everything unions representing public employees do is political, including contract negotiations.

More than half the states have right-to-work laws banning mandatory fees, but most members of public-employee unions are concentrated in states that don’t, including New York.

A decision is expected by late June.

If the unions lose, won’t they have less political influence? Justice Anthony Kennedy (left), on the mandatory union fee case