The Supreme Court is hearing a relatively little noticed case this morning that raises important questions about the breadth of the Constitution’s guarantee of freedom of speech and has huge implications for the future of public employee unions.

Janus v. American Federation of State, County and Municipal Employees, Council 31, is a challenge to an Illinois law and Supreme Court precedent that has stood for 40 years and allows public employee unions to collect “agency fees” from workers who are not union members but are represented by a union in contract negotiations.

You can read detailed summaries of the case ici et ici.

The law’s conservative critics, who appear poised to prevail in the high court, contend that the required payments infringe to the free speech rights of non-union workers. Justice Anthony Kennedy, often a swing vote on the court, has suggested that the payments are “compelled” speech because they allow the union to advocate for public policies that the workers may not support.

Union supporters counter that opponents of the law are “free-riders” who want to enjoy the benefits of union representation without sharing in the costs. They note that the agency fees are a fraction of the dues paid by union members and represent fair payment for the services unions provide in negotiating wages, hours and working conditions for all workers, not just those who are union members.

The high court split 4-4 on a similar case decided two years ago, when the court was short one member following the death of Justice Antonin Scalia. Justice Neil Gorsuch, Scalia’s replacement, is expected to side with those challenging the Illinois law.

Union leaders worry that a defeat in the high court will cut deeply into their budgets and cripple their ability to effectively represent their members and non-members covered by union-negotiated contracts. Public worker unions are arguably the last bastion of the labor movement, they claim the membership of more than one-third of government employees; unionists comprise only about 6.5 percent of private sector workers.

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