Will the Court Consider the Facts in Janus?

Source: Andrew Strom, On Labor blog, February 28, 2018 

Mark Janus’s lawyers are desperate to have the Court decide Janus v. AFSCME without considering any facts.  Janus is an Illinois state employee, who is represented by AFSCME Council 31.  Like all other employees in his bargaining unit, he is required to pay fair share fees to the union to cover the costs of providing representation.  Janus wants to Court to rule that these fees are unconstitutional without even considering how AFSCME spends these fees.  Janus also thinks that somehow the Court can decide that his refusal to fund union speech on workplace issues is protected by the First Amendment without overturning a series of cases holding that the grievances of public employees are not a form of speech protected by the First Amendment.  In addition, Janus thinks that merely by saying so, the Court can decide that states have a compelling interest in requiring lawyers to pay bar dues to mandatory bar associations, but no similar compelling interest in requiring public employees to pay fair share fees.  Janus’s lawyers realize that the more the Court considers actual facts, the harder it is for them to win their case, so their approach has been to insist that the case can be decided without any factual record.  But, the oral argument made clear that if the Court is not prepared to simply reaffirm its forty-year old precedent in Abood v. Detroit Board of Education, the only responsible move is to remand the case to develop a factual record…..

Coverage After the Janus Oral Argument
Source: Maddy Joseph, On Labor blog, February 28, 2018

The Supreme Court heard oral argument on Monday in Janus.  Analyses report that, as expected, there were pointed questions for AFSCME and Illinois by Justices Alito and Kennedy; the four liberal justices took every opportunity to highlight the potential effects of overruling Abood on collective bargaining and the ability of governments to manage their workforces.  Justice Gorsuch was silent.  There is a summary on SCOTUSblog, plus another analysis there.  NPR, the Wall Street Journal, and the LA Times also have solid summaries.  At the Atlantic, Garrett Epps highlights how little hard evidence there is in Janus–with no trial, there is not a developed record; and neither Janus nor the U.S. filled in those facts at argument.

The Times had a nihilistic editorial: assuming that the Court would overrule Abood, the editorial put Janus in political context.  It began with Merrick Garland and ended, “Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment.”…..