Contributing Op-Ed Writer: A Question of Legitimacy Looms for the Supreme Court


The path of the Janus case to the Supreme Court exemplifies the politics of the issue. The case was initially filed in 2015 in Federal District Court in Illinois not by an Illinois public employee but by the newly elected Republican governor, Bruce Rauner. He is a former private equity executive with a personal fortune of $500 million who spent millions on a campaign in which opposition to organized labor played a substantial part.

States are free to ban the agency-fee system or, for that matter, public employee unions entirely. But with both houses of the Illinois Legislature controlled by Democrats, Governor Rauner could not achieve his goals legislatively. It turned out that he couldn’t achieve them judicially, either; the Federal District Court threw him out for lack of standing; whoever the agency fee might be injuring, it wasn’t the governor.

But the court then permitted three state workers, including Mark Janus, to rescue the lawsuit by intervening as plaintiffs. That was an unusual move by the court, since logically there was at that point no lawsuit remaining in which the three could intervene. On appeal, the United States Court of Appeals for the Seventh Circuit questioned the intervention, but allowed it and ruled against the new plaintiffs on the merits.

Lisa Madigan, the state’s Democratic attorney general, joined with the union last summer in opposing the plaintiffs’ Supreme Court appeal. The union argued vigorously that the case was jurisdictionally flawed from the outset and that the Supreme Court therefore lacked the authority to hear it. Ordinarily, the justices shy away from a case that looks jurisdictionally sketchy. But this train had already left the station, and there was no stopping it this time.

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Thousands of teachers in Arizona rallied outside the Capitol on the second day of their walkout.CreditMatt York/Associated Press

It’s now been six years since Justice Alito, in a case called Knox v. Service Employees International Union, first revealed his eagerness to find the right vehicle for overturning Abood and effectively issued an open invitation to anti-union forces to bring him the right case. It seemed an aggressive move then. It still does but, watching the world outside the Supreme Court, I have a different thought. Is it just possible that the court’s timing is off?

Here’s what I mean. Remarkably, in the past few months, the public seems for the first time in years to be appreciating its public employees, especially teachers. Teacher walkouts in red states like West Virginia and Oklahoma received widespread attention and resulted in higher salaries. The winner of a competitive Republican primary for governor in Idaho pledged support for higher education spending and was endorsed by the teachers’ union.