OF ALL the blockbuster cases at the Supreme Court this year, Janus v American Federation of State, County and Municipal Employees (AFSCME) is expected to hold the fewest surprises. Janus, which is due to be argued on February 26th, asks whether public employees who choose not to join their designated union may nevertheless be charged “agency fees” to support collective bargaining. Since 1977, when Abood v City of Detroit Board of Education was decided, it has been acceptable to require non-members to subsidise contract negotiations over their salary, benefits and working conditions, but a no-no to make them pay toward a union’s lobbying or political organising. This compromise was teetering on the edge in 2016 when Justice Antonin Scalia died while a case raising the same question, Friedrichs v California Teachers Association, was pending. Bereft of a fifth vote to seal Abood’s demise, the justices split 4-to-4 in Friedrichs and put the 40-year precedent back on life support. 

The man everyone expects to help pull the plug this time is Neil Gorsuch, Donald Trump’s pick to replace Justice Scalia. Observers think Justice Gorsuch will join his four conservative brethren to say that workers should not be compelled to subsidise union negotiations for higher wages any more than they are required to pay for efforts to elect candidates or advocate for political causes. Undoing that distinction may be how Janus is resolved. But a brief from two libertarian legal scholars, alongside a brief submitted by a bevy of eminent economists, supplies a strong case for preserving what unions call “fair-share fees”. 

Start with the argument from Eugene Volokh and William Baude, conservative law professors from UCLA and the University of Chicago. These scholars believe Abood was wrongly decided—but for different reasons than those pushed by the fees’ challengers. Whereas Mark Janus, a municipal employee in Illinois, says he should not be forced to pay to support collective bargaining, as it is just as “political” as campaigning, Messrs Volokh and Baude say none of these dues qualify as protected speech. “Where Abood truly went wrong”, they write, “was not in how it applied the new First Amendment objection it recognised. Rather, Abood erred by recognising that objection in the first place.”

Compelling payments is quite common, Messrs Volokh and Baude observe, and usually raises no First Amendment worries. “The government collects and spends tax dollars, doles out grants and subsidies to private organisations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation.” These forced payments must satisfy constitutional norms including religious liberty and equal protection, but freedom of speech is neither here nor there: “a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association.” 

When a pacifist writes a cheque for his federal taxes, he is paying a significant chunk to America’s military. The money an Ayn Rand acolyte sends Uncle Sam helps to shore up entitlement programmes like Social Security. But these and millions of other taxpayers have no First Amendment licence to object to supporting expenditures they deplore; individuals do not enjoy a free-speech-backed line-item veto. “No matter how much we disagree with the government’s message”, Messrs Volokh and Baude note, “we cannot withhold the portion of our taxes that support it.” The remedy for these unhappy taxpayers is to speak up and gather together with like-minded citizens to push for political change. They can also “express their frustration at the ballot box”. But they “have no First Amendment interest to resist subsidising government speech they happen to disapprove of.”

Four decades ago, the Abood court wrote that avoiding free-riders and promoting “labour peace” were sound justifications for imposing mandatory agency fees. A new brief from a group of prominent economists, including three winners of the Nobel Prize, argues that the problem of free riders—workers benefiting from the toils of union representatives without paying dues—belies the crux of the challengers’ case. David Hume observed centuries ago that while two neighbours could easily team up to drain a meadow, “it is very difficult, and indeed impossible, that a thousand persons should agree in any such action”. As the numbers grow, each player would seek “a pretext to free himself of the trouble and expence, and would lay the whole burden on others”.

That is just what lawyers engineering the challenge to the unions have cooked up, the economists argue: a claim that a small, oppressed subset of teachers, policemen and firefighters across America want to stop paying dues because they hold beliefs that clash with those of their unions. There won’t be a dramatic exodus of dues-paying members from union rolls, the challengers say, just a modest winnowing. But the economists say it is “both false and disingenuous” to contend that outlawing agency fees won’t decimate the unions. It is natural for people to take things for free unless they're compelled to pay for them. A Congressional Research Service study shows that workers in states with fair-share fees join unions at a rate nearly triple that of workers in “right to work” states where membership is strictly optional.

Janus is at bottom a bid to undermine America’s labour movement. The case is not presented that way; it arrives at the Supreme Court in First Amendment wrapping by express invitation from Justice Samuel Alito in a pair of recent cases. It is notable that scholars with no particular love for organised labour—Mr Volokh says he is "somewhat sceptical of modern American unions"—are nonetheless unconviced by the Janus strategy, finding the free-speech approach a red herring. If Justice Gorsuch is indeed a judge who renders his “best judgment about the law and facts at issue in each particular case”, he will give the arguments in these briefs a fair hearing.