Most of the coverage of Janus v. AFSCME, like this recent piece in USA Today, simply (and perhaps correctly) assumes that the five Republican appointees on the Supreme Court will use the case to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair share fees for public sector workers.  But, now that the briefs have been filed, it is more clear than ever that those five Justices will have to put their thumbs heavily on the scale for the petitioner, Mark Janus, to prevail.

At least three doctrines that would ordinarily garner the support of some or all of the five Republican appointees weigh in favor of reaffirming Abood:  originalism, deference to governmental employers, and federalism.  Let’s start with originalism.  As AFSCME points out in its brief, the framers did not recognize any right of public employees to object to conditions placed upon their employment, even conditions that restricted the exercise of constitutional rights.  Next, Janus is arguing that all bargaining with a public employer, and even all resolution of individual grievances, is the equivalent of lobbying, and therefore compelled subsidization of that speech raises a serious First Amendment issue.  But, in order to avoid having courts second-guess managerial decisions, the conservative Justices (except for Gorsuch, who wasn’t on the Court yet) have all endorsed the idea that the grievances of public employees are not entitled to First Amendment protection.  Then, there is federalism.  Almost half the States authorize agency fees for public sector workers covered by collective bargaining agreements.