Stephen Roberts, with the American Federation of State, County and Municipal Employees (AFSCME), holds up a sign against Mark Janus during a rally outside of the Supreme Court, Monday, Feb. 26, 2018, in Washington. The Supreme Court takes up a challenge in a case that could deal a painful financial blow to organized labor. The court is considering a challenge to an Illinois law that allows unions representing government employees to collect fees from workers who choose not to join. (AP Photo/Jacquelyn Martin)
Stephen Roberts, with the American Federation of State, County and Municipal Employees (AFSCME), holds up a sign against Mark Janus during a rally outside of the Supreme Court, Monday, Feb. 26, 2018, in Washington. The Supreme Court takes up a challenge in a case that could deal a painful financial blow to organized labor. The court is considering a challenge to an Illinois law that allows unions representing government employees to collect fees from workers who choose not to join. (AP Photo/Jacquelyn Martin) Credit: Jacquelyn Martin

The Supreme Court heard arguments Monday in Janus v. American Federation of State, County and Municipal Employees, which presents the justices with two questions. The first is the legal issue in the case: whether governments may require public-sector workers to pay a fee to unions that represent them in collective bargaining, even if they disagree with the union on politics and other matters. The second, and broader, question is the implicit one of how the court should conduct judicial review in a deeply polarized society.

Few matters are more consequential, in partisan terms, than the flow of funds to public-sector unions, a key constituency of the Democratic Party. There are good-faith reasons to be concerned about the power of these unions; one of those reasons is whether compulsory collective-bargaining fees amount to compelled speech by employees in favor of unions, contrary to the First Amendment. Yet the fact is that the court decided those issues in a similar case 41 years ago, ruling that there was no constitutional violation given governments’ compelling interest in stable labor relations. Opponents of mandatory fees are asking the justices to overrule that long-established precedent, something they are usually loath to do, for good reason.

And the opponents seek that extraordinary remedy in the context of the Supreme Court’s tumultuous recent history: the death of Justice Antonin Scalia in 2016; followed by a 4-to-4 tie on the same public-sector dues issue; followed by the Republican Senate’s refusal to consider a Democratic president’s choice to replace Scalia; followed by the election of a Republican president and the prompt confirmation of that president’s different choice for the empty seat, Neil Gorsuch.

A reversal of precedent, with such direct partisan impact, after such a politicized recent change in its personnel would not serve the court’s legitimacy. Perhaps sensitive to that reality, Justice Stephen Breyer repeatedly suggested at oral argument that the court adopt a compromise — one that would not upset precedent but would update it, to take account of genuine First Amendment concerns related to public-sector collective bargaining. Specifically, Breyer asked attorneys for the contending parties for their views on a solution under which employees could be required to pay, but only for a narrow range of collective-bargaining duties as defined in state law, rather than for tangentially related matters, such as union conventions, for which unions have heretofore been permitted to charge.

In addition to increasing objectivity and consistency in the setting of the mandatory fees, this solution has the advantage of being previously endorsed by none other than Scalia, who wrote in 1991 that “where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them.” Lawyers representing the union before the court Monday seemed amenable to Breyer’s reiteration of Scalia’s idea, while Gorsuch, silent for the entire hour, did not tip his hand.

For the newest justice, and the entire court, this is a rare opportunity simultaneously to embrace the doctrine of modern conservativism’s judicial hero while steering the court modestly down the middle of the road. They should take it.

The Washington Post