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A quick Janus roundup

Monday, Feb 26, 2018

* From the governor…

* Attorney General Lisa Madigan was hopeful after today’s oral arguments…

* But

Aside from Gorsuch’s silence, the most striking aspect of Monday’s argument was Justice Anthony Kennedy’s hostility to the unions’ position. He repeatedly tore into lawyers for the State of Illinois and for a major union as they defended the ‘fair share’ practice.

As Illinois Attorney General David Franklin argued that the agency fees help states by bolstering the unions’ role as a negotiating partner, Kennedy ridiculed that claim, contending that what the unions are really about is wielding political power.

“It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, … for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes?” Kennedy said almost angrily. “That’s the interest the state has?….Doesn’t it blink reality to deny that is what’s happening here?”

Earlier in the argument, Kennedy framed the so-called agency fees as a clear First Amendment violation.

“What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly,” the frequent swing justice and Reagan appointee said.

Kennedy’s comments were so strident that it sounded like he may have crafted a majority opinion striking down the fees in the case from last term, but was forced to put the opinion on ice when the court deadlocked after Scalia’s death.

* The Trump administration claimed the case wasn’t really a huge dealio…

The full transcript is here.

…Adding… Sun-Times

Union workers rallied Monday in front of the Picasso statue in Daley Plaza to denounce a lawsuit being heard that morning in the U.S. Supreme Court — a case they called an open-and-shut case of union busting.

“This court case was cynically designed to try and weaken the voices and power of working people,” said Kimberly Smith, a healthcare administrator and member of Service Employees International Union, Healthcare Illinois-Indiana, one of the organizers of the rally.

“In fact, destroying the union movement is what motivates [Gov. Bruce] Rauner — it’s all he thinks about before he goes to bed,” Smith told a cheering crowd of about 100.

* Video from a Saturday rally…

- Posted by Rich Miller        

  1. - Soapbox Derby - Monday, Feb 26, 18 @ 1:42 pm:

    Kennedy is normally the Court’s swing vote. Based upon his questions today, it’s over.

    Janus will prevail on a 5-4 vote.

  2. - Ole General - Monday, Feb 26, 18 @ 1:49 pm:

    So the Union Lawyers annoyed the only true swing voter on the court.

    Brilliant work.

  3. - Steward As Well.... - Monday, Feb 26, 18 @ 1:50 pm:

    SG Noel Francisco, “allow unions to charge for grievances and contact administration.” ABSOLUTELY not, his argument should be if the case is lost anyone that wants to disconnect from the union in this way must be 100% on their own in dealing with management.

  4. - Steve Rogers - Monday, Feb 26, 18 @ 1:55 pm:

    Ole General, Kennedy already had his mind made up. The only vote that counts in this case is Gorsuch’s.

  5. - Truthteller - Monday, Feb 26, 18 @ 1:58 pm:

    Kennedy has shown his hostility to unions in past cases, so there is no surprise to anyone who has paid attention.
    He may be open on social issues, but he’s a spokesperson for the 1% on economic issues

  6. - Real - Monday, Feb 26, 18 @ 2:00 pm:

    So the Union Lawyers annoyed the only true swing voter on the court.

    -that guy is a Reagan appointee and he always votes against Unions. He is just like having Rauner on the bench.

  7. - RNUG - Monday, Feb 26, 18 @ 2:04 pm:

    Copied from my post in the first thread:

    I know the common wisdom is that Abood will be overturned. I’m going to be a contrarian and predict the court will punt on it.

    I think the smart thing for the court would be to remand it back to the lower court for a determination of fact; specifically, order the lower court to determine if, in fact, any fair share fees were actually used for political purposes. In other words, the union would have to open up their books to a forensic audit.

    That would be a solution that would split hairs on this subject. And if the union was found in violation, the resolution would be reimbursement of damages, fines, and possibly future Prohibition on union lobbying. Not the outcome Rauner wants, but that seems closer to the intent of tue law … and it wouldn’t open up the free speech issue can of worms everyone is speculating about.

  8. - Mike Cirrincione - Monday, Feb 26, 18 @ 2:04 pm:

    No person should be forced to give up their hard earned money to support anything they don’t want to, for instance churches, which get plenty of money from the government due to their not for profit status.

  9. - walker - Monday, Feb 26, 18 @ 2:05 pm:

    It would be upsetting to see a Court decide a Constitutional question, based primarily on accepting a false statement of facts.

  10. - DuPage Saint - Monday, Feb 26, 18 @ 2:14 pm:

    Rnug is absolutely right. This case is up on a motion to dismiss. Never a trial and all facts not out as transcripts make clear. Can duck it send it back. Nice for Gorsuch to question but when mind made up why waste time. Also much discussion about huge national implications. I say goes back

  11. - wordslinger - Monday, Feb 26, 18 @ 2:16 pm:

    –So the Union Lawyers annoyed the only true swing voter on the court.–

    That’s blissful revisionism of Kennedy’s long stance on the issue, as any reading of links just today would have informed you.

    If you have to make up nonsense to make your point, perhaps your point isn’t very strong.

  12. - The fake Joseph Cirrincione - Monday, Feb 26, 18 @ 2:16 pm:

    =No person should be forced to give up their hard earned money to support anything they don’t want to, for instance churches, which get plenty of money from the government due to their not for profit status.=

    You mean like war for fun and profit and corruption?

  13. - Ole General - Monday, Feb 26, 18 @ 2:22 pm:

    - That’s blissful revisionism of Kennedy’s long stance on the issue, as any reading of links just today would have informed you. -

    On this issue, I don’t disagree. But his role as the swing justice remains and if your hopes remain on Gorsuch, well good luck.

    As a PR guy, figured you would understand the difference between spin and substance.

    Apparently not.

    General Out

  14. - Ahoy! - Monday, Feb 26, 18 @ 2:23 pm:

    Kennedy is right on, the State should not be involved in defending the union in this case. This is collusion against taxpayers.

  15. - Grandson of Man - Monday, Feb 26, 18 @ 2:23 pm:

    Unions should be able to charge for bargaining before contract administration. Bargaining is where the benefits are won.

    No matter what happens in Janus, there is still the AFSCME contract battle in Illinois. Rauner wants to jam tens of thousands of state workers with horrible terms while his income skyrockets. He said, literally, that he and his partners made lots of money when he told of decades-long public employee pension investment. That was when he released his 2015 taxes, having made $188 million.

    How is he going to win the contract fight? Is he going to start again with the phoniness, the “I’m Bruce, your friend” communications? Does he think the state workforce on the whole has enough Januses for him to win? Eighty-one percent of unionized state workers voting to authorize a strike vote (out of 80% voting) say otherwise.

  16. - Moby - Monday, Feb 26, 18 @ 2:26 pm:

    I’ve always wondered these past few years why Janus waited until his salary was topped out at $72k before he started making a big fuss over his union dues. I’d probably believe his sincerity a little more if he was still making $40k.

    I think a really easy solution to all of this would be to make all state titles union, but with an opt-out option. The opt-out would convert that individual position/title into merit comp, where it would stay until the employee left the position. The employee wouldn’t have to contribute to union benefits he/she didn’t want, and the union wouldn’t have to represent employees who weren’t contributing to the union. Fair solution to everyone.

  17. - Oswego Willy - Monday, Feb 26, 18 @ 2:29 pm:

    - RNUG -

    Your logic is per usual top notch.

    The makeup of this Court, I don’t think they’d like to kick this back when this case could be the one they have in front of them now to change Abood.

    I look forward to your continued take in this case all the way up to what decision is handed down.

  18. - Mouthy - Monday, Feb 26, 18 @ 2:31 pm:

    If they send it back the unions will live. There’s enough money spent on other items that the dues money can be explained away. It’s like the lottery money. You can claim the money is going for schools but in reality the money goes in one big pot.
    If they rule against fair share money many unions will be destroyed. This will result in lower paychecks and benefits for millions, many of which aren’t even in a union and may have cheered for their destruction. In time this will destroy the economy and the U.S. will be ruled by oligarchs and autocrats. Something for the Jill Stein supporters and Bernie stay at homes will be on the list of those responsible.

  19. - Anonymous - Monday, Feb 26, 18 @ 2:32 pm:

    Wait a sec, I thought Kennedy was one of the good ones after Obergfel.

  20. - Border Bound - Monday, Feb 26, 18 @ 2:35 pm:

    If labor laws are passed and enforced to protect workers, why would workers employed by the institutions that pass and administer those laws require union protection? Are governments such poor employers that they will take advantage of workers, in violation of the very labor laws they pass? Even if a compelling case can be made for the need for union protection for government workers, why not allow any government employees who don’t want to be part of the union fend for themselves - i.e., no union dues and no union representation - just them versus management?

    Sure, it’d mean two sets of rules - different pay structures, seniority / tenure treatment, advancement, vacation, sick-leave, retirement, etc…, but I’m guessing that as long as those differences work in favor of the unions, membership wouldn’t have a problem with it. However, what result if those who are “independent” employees actually receive better treatment on any of those components of the employment compact? Perhaps that’s what all the worry is about these days.

  21. - Real - Monday, Feb 26, 18 @ 2:38 pm:

    On this issue, I don’t disagree. But his role as the swing justice remains and if your hopes remain on Gorsuch, well good luck.

    -Just like Rauner is a swing voter on social issues like abortion and sanctuary states. Just like Rauner it seems Kennedy is just going with whatever gets the backing of the highest bidder.

  22. - Nick Name - Monday, Feb 26, 18 @ 2:38 pm:

    Justice Kennedy: the country club Republican’s country club Republican.

  23. - Sue - Monday, Feb 26, 18 @ 2:40 pm:

    To RNUG and Oswego- why would Kennedy change his vote from Friedrich. The case is over 5 to 4 with Gorsuch voting with Kennedy. Anything else is wishful thinking and denial

  24. - Demoralized - Monday, Feb 26, 18 @ 2:43 pm:

    ==if those who are “independent” employees actually receive better treatment==

    In Illinois government, history shows that those non in the union receive far worse treatment when it comes to salaries.

    If this were truly about freedom for the Governor he would have already begun treating non-union individuals differently, but he hasn’t. This case has nothing to do with freedom and fairness. It has to do with the Governor trying to tear down every barricade in front of him that is preventing him from sticking it to public employees.

  25. - Oswego Willy - Monday, Feb 26, 18 @ 2:46 pm:

    ===why would Kennedy change his vote from Friedrich.===

    I didn’t say anything pertaining to any justices or any votes, changing or otherwise. Why you lumped me here is confusing.

    ===The case is over===

    “We’ll find you guilty, then have a trial”

    I dunno how they’ll rule, I wouldn’t bet too much against Janus, but…

    ===5 to 4 with Gorsuch voting with Kennedy.===

    If you have the written opinion, by chance, close, can you cut and paste it and put it in the comments, or email it to Rich. Thanks.

  26. - Da Big Bad Wolf - Monday, Feb 26, 18 @ 2:47 pm:

    Border bound, government isn’t a person, it’s a lot of people. The people who pass the laws aren’t necessarily the people who run individual agencies.

    Unions by law have to represent all members of their bargaining group, per the Taft-Hartley Act of 1947. So no, no one can just opt out.

  27. - Mike Cirrincione - Monday, Feb 26, 18 @ 2:48 pm:



    Like a certain War Department that needs my tax dollars to exist. They buy their guns from manufacturers that send some of my tax dollars to the gun lobby that has a clear misunderstanding of the 2nd Amendment.

  28. - downstate commissioner - Monday, Feb 26, 18 @ 3:03 pm:

    My taxes go to support wars that kill or main our young people. Don’t like it, but there it is….

  29. - Blimp - Monday, Feb 26, 18 @ 3:03 pm:

    ==future Prohibition on union lobbying==

    Hopefully union power will stand but the above is the conflict of interest.

  30. - wordslinger - Monday, Feb 26, 18 @ 3:09 pm:

    –But his role as the swing justice remains and if your hopes remain on Gorsuch, well good luck.–

    Kennedy was not and never was a “swing vote” on this issue. You’re just making stuff up.

    I’m sure you do that a lot to get through the day.

  31. - Real - Monday, Feb 26, 18 @ 3:15 pm:

    A big thank you goes to republican voters who have allowed the 1 percent to manipulate you into believing Unions are the problem.

  32. - Bored Chairman - Monday, Feb 26, 18 @ 3:18 pm:

    Rauner may end up with a major legacy achievement after all. And he beat a Madigan to do it, too.

  33. - Steve Rogers - Monday, Feb 26, 18 @ 3:19 pm:

    RNUG, I can’t see them punting when they already had a 4-4 tie in the California Friedrichs case a couple years ago. Same issue. The conservatives now have their 5th vote with Gorsuch.

  34. - California Guy - Monday, Feb 26, 18 @ 3:20 pm:


    I see what you mean, but we’re talking about a practically identical argument in the Freidrich’s case where four justices were ready to make up their mind without doing further fact finding. Haven’t went through the transcript yet, but if none of the judges asked for further fact finding or clarification on union lobbying (lobbying itself can get complicated) with fair share fee revenue, I’d probably place my bet on Gorsuch joining the previous four justices that seemed ready to strike down Abood.

    Of course, we’re all speculating here, which anyone who covers SCOTUS will advise that you never do. My money is on Abood getting overturned, possibly some tweeks to duty to bargain, etc.

    Gorshuch pulling a Clarence Thomas adds more wood to the fire of speculation. I’m thinking this is indeed a going away party for fair share fees though.

  35. - Steve Rogers - Monday, Feb 26, 18 @ 3:20 pm:

    Oh, I forgot to add that scotusblog has some analysis and drawings.

  36. - RNUG - Monday, Feb 26, 18 @ 3:21 pm:

    == why would Kennedy change his vote from Friedrich. ==

    Because the case isn’t being decided on facts?

    I’d like to think facts still mean something …

  37. - Real - Monday, Feb 26, 18 @ 3:22 pm:

    This is really about the rich getting richer and the poor getting poorer. The 1 percent has been very crafty in getting republican voters to believe the lies that Unions are the problem. It’s time for people to wake up and stop beliving in well funded lies.

  38. - RNUG - Monday, Feb 26, 18 @ 3:25 pm:

    == I can’t see them punting ==

    They probably won’t … bit that doesn’t mean they shouldn’t. The record on this case stinks …

  39. - Steve Rogers - Monday, Feb 26, 18 @ 3:29 pm:

    “They probably won’t … bit that doesn’t mean they shouldn’t. The record on this case stinks …”

    I 100% agree. It’s really too bad how blatantly political SCOTUS is.

  40. - cdog - Monday, Feb 26, 18 @ 3:29 pm:

    I might have to print and frame that Kennedy quote. Keep me focused on what’s really been happening for decades in Illinois.

    And btw, no sympathy for LMadigan whining about a rowdy 1% causing problems. The vocal minority’s opinion has become the new substantive democracy.

  41. - wordslinger - Monday, Feb 26, 18 @ 3:36 pm:

    –The vocal minority’s opinion has become the new substantive democracy.–

    I’ll take dressing and bacon-bits on the side with that word salad.

    Unless it was supposed to mean something. It being “new” and all.

  42. - Nick - Monday, Feb 26, 18 @ 3:37 pm:

    Why would any state employee believe that any administration would treat them fair. Can no one see the writing on the wall. Where do you think AFSCME members would be today if not for their union representation people who say public employees should not be in a union have never worked for a public entity
    Politicians use state employees as scapegoats for everything
    Need to trim the budget. Cut pay
    Need money for a new program. Cut health benefits
    Need a job for spouses cousin. Lay someone off etc etc
    The unions are the only recourse these employees have

  43. - Last Bull Moose - Monday, Feb 26, 18 @ 3:40 pm:

    Sounds like the activist court will strike again. I am not a huge fan of public employee unions. Though they have value in checking the actions of bad government managers. But this is not the role of the courts. Let the political process play out.

    I am trying to be consistent. I favor women having access to abortion and gay marriage, but don’t like that we got there through judicial decree. Same thing here. Could be the outcome I like, but this is the wrong way to get there.

  44. - dbk - Monday, Feb 26, 18 @ 3:51 pm:

    RNUG on remanding the case to the lower court

    Absolutely, this is the reasonable thing to do, given that the case has no paper trail.

    But I don’t think what is reasonable is what will happen. NRTWLDF has been waiting for a case like this for a long, long time; Gorsuch’s nomination-appointment represent planned serendipity; Alito’s been dropping hints he wanted another case like Friedrichs v. CTA …

    So I think it will be decided 5-4 as most legal experts (IANAL) anticipate, unless somebody (but who?) gets very skittish between today and decision-writing time.

    Btw, Charlotte Garden’s live tweets during the arguments were excellent.

  45. - Honeybear - Monday, Feb 26, 18 @ 4:15 pm:

    Wow fascinating arguments back and forth when you read the transcripts.

  46. - Anonymous - Monday, Feb 26, 18 @ 4:16 pm:

    - Mike Cirrincione - Monday, Feb 26, 18 @ 2:48 pm:

    You don’t know what you are talking about

  47. - Honeybear - Monday, Feb 26, 18 @ 4:18 pm:

    Super worried about the grievance stuff at the end.

  48. - Mike Cirrincione - Monday, Feb 26, 18 @ 4:49 pm:

    @anon 416

    Either government manages Free Speech or it doesn’t, with the exception of yelling fire in a crowded theatre.

    Don’t like it? Take it up with the failed illinois governor who has an irrational obsession with Mike Madigan.

  49. - Steward As Well.... - Monday, Feb 26, 18 @ 5:18 pm:

    Honeybear (4:18) Worried about the “grievance stuff.” Really…. Contract violations that are constantly pulled without P & P with no apparent reason. Well there is but not for the right reason. Sigh….

  50. - Jake From Elwood - Monday, Feb 26, 18 @ 5:27 pm:

    I believe that Abood will be overturned on a 5-4 vote. I also believe that the Unions in Illinois will try to find a legislative path around this. Or they will institute ‘members-only’ unions, but without the cool jackets.

  51. - Mama - Monday, Feb 26, 18 @ 5:36 pm:

    This is not only about the AFSCME union. This case will also affect the Teachers’ union, etc..

  52. - Generic Drone - Monday, Feb 26, 18 @ 5:59 pm:

    Has everyone forgotten that this will also effect all unions? Not just public sector employees.

  53. - Anonymous - Monday, Feb 26, 18 @ 6:15 pm:

    If a person seeking a job was informed that the job entailed paying union dues and you were opposed to unions, why would you take the job? To change the entire operation for your own personal beliefs? Is it the only job in the country that would hire you? Choices?

  54. - Anonymous - Monday, Feb 26, 18 @ 6:17 pm:

    - Mike Cirrincione - Monday, Feb 26, 18 @ 4:49 pm:

    What does this have to do with your earlier comments on guns? Answer Nothing

  55. - Chicago 20 - Monday, Feb 26, 18 @ 6:19 pm:

    Kennedy had his mind made up on fair share fees before he was appointed by Reagan.

    That’s how he got the job.

  56. - Da Big Bad Wolf - Tuesday, Feb 27, 18 @ 6:37 am:

    I wonder how David Franklin responded to Kennedy’s outburst?
    “It can be a partner in advocating for a greater size workforce,” or filling vacancies that are hard to fill.
    “against privatization,” against the state wastefully paying a middleman for work that can be done cheaper in house.
    “against merit promotion” against the boss paying women and minorities less for the same work. Or paying more to his girlfriend.
    “for teacher tenure, for higher wages”, Looks like the higher wages and job security aren’t enough because municipalities still can’t find enough teachers to fill the jobs.
    “For massive government” Yes, we live in the nation with the most incarcerations, we will need to have the infrastructure for that. “For increasing bonded indebtedness” Yes, if you don’t pay your bills on time that’s what happens. “For increasing taxes.” See above.

  57. - Honeybear - Tuesday, Feb 27, 18 @ 6:50 am:

    Steward as well- Read the court transcript. Janus’ lawyer goes after grievances as a whole. Yes contract violations get pulled now but that’s because we already don’t have the money to fight them. What I am worried about is loosing the grievance procedure all together in some kind of nuanced ruling.

  58. - Steward As Well.... - Tuesday, Feb 27, 18 @ 10:08 am:

    Oh I read it HB. That won’t happen. And it’s more than just money on who’s grievances advance past third. But that is a story for another day….

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* White Sox pummel Diamondbacks just one day after, well, getting pum...

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