[Editor’s note: An earlier version of this post ran on December 18, as an introduction to this blog’s symposium on Janus v. American Federation of State, County, and Municipal Employees, Council 31, as well as at Howe on the Court, where it was originally published.] 
 
 Like many employees, Mark Janus was upset about deductions from his paycheck – specifically, the roughly $45 per month that goes to the local branch of the American Federation of State, County, and Municipal Employees, the union that represents him. But unlike most employees, Janus – a child-support specialist at the state’s Department of Healthcare and Family Services, who does not belong to the union – may be able to do something about that deduction. Next week the Supreme Court will hear oral argument in his challenge to the constitutionality of the fee. It’s a familiar question for eight of the nine justices, who have already heard oral argument on the issue twice. The court did not resolve the issue the first time; the second time, in the wake of the death of Justice Antonin Scalia, they deadlocked. This means that the outcome in Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch. 
 
 In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that government employees like Janus who do not belong to a union can be required to pay a fee – often known as a “fair share” or “agency” fee – to cover the union’s costs to negotiate a contract that applies to all public employees, including those who are not union members. The justices reasoned then that allowing the fees would help to avoid both labor strife and the prospect that nonmembers could be “free-riders” who benefit from the union’s collective bargaining efforts without having to pay for them. But that decision has come under fire in recent years, in a series of cases asking the court to overrule Abood and hold that requiring an unwilling employee to pay even this more limited fee violates the First Amendment. 
 
 The justices agreed to tackle the question presented by Janus’ case four years ago, in another case from Illinois. But they didn’t decide the issue then; instead, they ruled that the employees in that case – home health aides, who usually take care of family members and are compensated by the state – were not actually public employees. However, five justices – Justice Samuel Alito, whose opinion for the court was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas – suggested that they might be willing to reconsider Abood. 
 
 Two years later, another challenge to the agency fees returned to the Supreme Court, this time brought there by a group of California public-school teachers. The justices heard oral argument in the case on January 11, 2016, but they had not yet announced their decision before Scalia died a few weeks later. Six weeks after Scalia’s death, the court revealed that it was deadlocked, issuing a one-sentence order that left the lower court’s ruling in favor of the union in place. The teachers asked the court to reconsider that ruling, but – after repeatedly putting off action on the request – it declined to do so. 
 
 Enter Mark Janus, who came to the Supreme Court after the U.S. Court of Appeals for the 7th Circuit rejected his argument that the agency fee violated his rights under the First Amendment, explaining that it did not have the power to overrule Abood. But the Supreme Court does have that power, and earlier this year it agreed to review Janus’ case. 
 
 Janus’ argument in the Supreme Court for overturning Abood rests on the idea that, because issues like salaries, pensions and benefits for government employees are inherently political, agency fees – even if characterized as the costs of contract negotiations – actually finance speech that is intended to influence the government’s personnel policies. Therefore, he contends, requiring him to pay an agency fee is no different from requiring him to subsidize a group that lobbies the government. He points out that when the union was bargaining with the state, the state wanted to save money on health insurance and indicated that it could not afford across-the-board salary increases, but the union “took opposite positions.” 
 
 Because an agency fee effectively requires him to speak, he continues, the Supreme Court must subject it to heightened constitutional scrutiny – which it cannot survive. First, he asserts, the government does not have a pressing need to bargain only with unions – indeed, it doesn’t need to bargain at all and instead could simply decide on employment policies. But even if there were such a compelling need, he adds, unions don’t need to require all employees to pay for that bargaining, because unions presumably would want to do it anyway. 
 
 On behalf of the state of Illinois, Attorney General Lisa Madigan and Michael Hoffman, the acting director of the state’s Department of Central Management Services, counter that there is no reason to overrule Abood, which was correctly decided. The Supreme Court has long held, they argue, that a state has “far broader powers when” – as here – it is acting as an employer rather than a regulator, and a different (and less stringent) standard of review applies in such cases. The only relevant questions, they suggest, are whether a restriction on an employee’s speech affects the employee’s ability “to speak as a citizen on a matter of public concern,” and, if so, whether the government had a good reason for treating the employee differently from a member of the general public. 
 
 Janus urges the justices to scrap Abood for another reason: It has simply proved to be “unworkable,” because of the difficulties that arise in determining which expenses can be attributed to collective bargaining efforts. The current system, he argues, gives unions too much discretion to determine what fees they will require nonmembers to pay. Most of AFSCME’s expenses, for example, arise from salaries and benefits for union officials and employees. The fees that nonmembers like Janus have to pay, he asserts, therefore “turn, to a large degree, on self-interested judgments by union officials about how they and other union employees spend their time.” 
 
 AFSCME and the state push back against the idea that Abood is somehow “unworkable,” reminding the justices that the Supreme Court not only left its ruling in that case “undisturbed” in Harris and Friedrichs, but has applied it in other contexts, ranging from bar associations to agricultural marketing. Any supposed problems with distinguishing between the various kinds of expenses, the state adds, are “illusory,” and certainly not enough to justify overruling Abood. Indeed, they note, the Supreme Court has over the years refined the test for distinguishing between the fees that can be charged to nonmembers and those that cannot, and has established procedural requirements to further ensure that employees’ rights are protected. 
 
 More broadly, the state stresses, it is not enough for Janus to simply contend that the decision in Abood was wrong; there must be a special reason to justify overruling it. But no such justification is present here, they conclude, particularly when workers, unions and governments have all relied on the decision for decades. The state’s description of the scope of that reliance also illustrates the potentially seismic effect of a ruling against the unions: More “than 20 states have enacted statutes permitting the collection of fair-share fees. An untold number of employment contracts have been negotiated pursuant to those laws. Those contracts, in turn, cover millions of public employees represented by unions that agreed to represent them in return for a guarantee that they would be adequately compensated” for their efforts. 
 
 In addition to the composition of the court, one other thing has changed in the two years since the justices last heard oral argument on the agency-fee question: the position of the United States. In Harris v. Quinn and Friedrichs, the federal government filed briefs supporting the unions and argued that the court should reaffirm its decision in Abood. But the Trump administration now urges the justices to overrule that decision, telling them that the government’s earlier position “gave insufficient weight to the First Amendment interest of public employees in declining to fund speech on contested matters of public policy.” The justices are sometimes skeptical of changes in position, but this may be a case in which a switch may not make much of a difference. If (as seems very possible) eight justices have already made up their minds, all that really matters may be what Gorsuch thinks. And we’ll have to wait until next week to get a better sense of that. 
 
 Recommended Citation: Amy Howe, Argument preview: For the third time, justices take on union-fee issue, SCOTUSblog (Feb. 20, 2018, 10:30 AM), http://www.scotusblog.com/2018/02/argument-preview-third-time-justices-take-union-fee-issue/ ||||| The U.S. Supreme Court will hear a case originally brought by Gov. Bruce Rauner that challenges whether government employee unions should be able to collect fees from nonmembers, a critical question for organized labor nationwide that the court deadlocked over last year. 
 
 In one of his first acts in office in February 2015, the Republican governor attempted to halt the passing along of the union fees in order to invite a legal challenge. On Thursday, the Supreme Court agreed to consider the lawsuit that resulted, and Rauner said a victory would be "transformative for the state of Illinois, transformative for America." 
 
 Losing the required fees worries labor leaders because it could lead to more workers leaving unions to avoid the cost, starving unions of money and members. The American Federation of State, County and Municipal Employees union at the center of the lawsuit called it "yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor." 
 
 A similar case out of California was already in the legal pipeline when Rauner acted in 2015. By the time it was decided, the Supreme Court was short one member following the death of conservative Justice Antonin Scalia. The court issued a 4-4 split decision that left the existing system intact. 
 
 With President Donald Trump's appointment of Neil Gorsuch, the court's ruling in the Illinois case could deal a major blow to public-sector unions nationwide if Gorsuch sides with the conservative justices who were in favor of doing away with the "fair share" fees. 
 
 Unions negotiate new contracts and handle grievances on behalf of all workers within a bargaining unit, not just those who are members. The fees help pay for those efforts. 
 
 J. Scott Applewhite / AP A Supreme Court with a reconstituted conservative majority is taking on a new case with the potential to financially cripple Democratic-leaning labor unions that represent government workers. The justices deadlocked 4-4 in a similar case last year. A Supreme Court with a reconstituted conservative majority is taking on a new case with the potential to financially cripple Democratic-leaning labor unions that represent government workers. The justices deadlocked 4-4 in a similar case last year. (J. Scott Applewhite / AP) (J. Scott Applewhite / AP) 
 
 Illinois is one of about two dozen states that requires its workers to pay fair share fees to public employee unions even if they are not union members. The thinking is that workers who are not part of a union still benefit from its services, even if they don't support the union's political agenda. If the fees were no longer required, more workers might decide not to join unions in an effort to keep more money in their paychecks. 
 
 Rauner has contended that the fair share system violates free speech and that workers should not have to support unions they don't want to belong to. Unions are not allowed to spend fair share fees on political activities such as campaign contributions, but the governor has questioned that restriction, saying it's impossible to separate political activities because public-sector unions negotiate directly with the government. 
 
 "By its very nature, the activity of a government union is political," Rauner said in a Thursday interview with the Tribune. "Everything they do is political because it's inside government, it impacts politics." 
 
 Hours after the high court had announced its decision to take up the case, Rauner was in victory mode as he gave a speech at a luncheon of the Illinois Chamber of Commerce. 
 
 "This is a big deal, ladies and gentlemen, big deal," Rauner said, adding that his lawyers have predicted a "90 percent chance" of the ruling going in his favor, which he said would be "transformative for the state of Illinois, transformative for America and the relationship between our taxpayers and the people who work for our taxpayers. It's not going to be a one-way deal anymore." 
 
 The American Federation of State, County and Municipal Employees — the largest public employee union in Illinois and the one at the center of the lawsuit — predicted victory for their side. 
 
 "When working people are able to join strong unions, they have the strength in numbers they need to fight for the freedoms they deserve, like access to quality health care, retirement security and time off work to care for a loved one," AFSCME President Lee Saunders said in a statement. "The merits of the case, and 40 years of Supreme Court precedent and sound law, are on our side. We look forward to the Supreme Court honoring its earlier rulings." 
 
 The Illinois case dates to 2015, when Rauner issued an executive order that directed state government to stop passing fair share fees on to unions. Anticipating a legal challenge, Rauner also filed a federal lawsuit seeking to have his decision declared legal and hoping to bring the issue to the Supreme Court. 
 
 The executive order was put on hold when a judge in Downstate St. Clair County ordered the state to keep passing the fees along while the matter continued to play out in court. Around the same time, a federal judge dismissed Rauner from a parallel case, saying he lacked standing to challenge public unions in his official capacity because he had "no personal interest at stake." 
 
 Three workers who also were contesting the payments were allowed to proceed with their own complaint. That's the case now before the Supreme Court, Janus v. AFSCME. 
 
 The lead plaintiff, Mark Janus, is a child support specialist at the Illinois Department of Healthcare and Family Services. He's being represented by attorneys at the National Right to Work Foundation and the Illinois-based Liberty Justice Center, which is an affiliate of the Illinois Policy Institute, a conservative think tank with close ties to Rauner. 
 
 Arguments in the case are likely to take place in early 2018, with a decision expected before the June adjournment of the court. 
 
 Last year, the eight justices on the court deadlocked over a similar case brought by an Orange County teacher who asserted that her free speech rights were violated by being forced to pay about $650 a year in fees to a union. ||||| 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,... (Associated Press) 
 
 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... (Associated Press) 
 
 WASHINGTON (AP) — 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, 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. 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. 
 
 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 Justice Scalia's death just over two years ago left the court tied, leaving a lower court ruling in favor of the fees 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. 
 
 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. 
 
 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. 
 
 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. 
 
 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. 
 
 A decision in Janus v. AFSCME Council 31, 16-1466, is expected by late June.
– Teachers and other public employees are now eyeing the Supreme Court after it announced Thursday it will take on a case next summer that may have big repercussions for unions. The Los Angeles Times reports the high court will look at overruling the requirement that all public employees, not just union members, pay fees that support collective bargaining. The case, being brought on behalf of Illinois child support specialist Mark Janus, could affect unions in 22 states where those "fair share" fees are now mandated for all public employees; labor experts think many would stop paying if they weren't forced to. With conservative Neil Gorsuch now on the gavel, it's expected the ruling won't favor the unions. The country's four largest public-sector unions are blasting the complaint as "a blatantly political and well-funded plot ... to further rig the economic rules against everyday working people." The case stretches back to 2015, when Illinois Gov. Bruce Rauner filed a complaint saying the mandated fees were unconstitutional, per the Chicago Tribune. Three state employees, including Janus, joined the suit, which was eventually thrown out by a federal judge and an appeals court. The ruling used as precedence was the 1977 Supreme Court case of Abood vs. Detroit Board of Education, in which it was decided all public employees, even those not in unions, must pay a portion of union dues that go toward collective bargaining efforts, as those efforts benefit all employees. Early last year, Janus penned an op-ed for the Tribune explaining why he didn't feel he should be required to pay the fees, writing: "I am not anti-union. Unions have their place. … But unions aren't a fit for everyone. And I shouldn't be forced to pay money to a union if I don't think it does a good job representing my interests."