George Gibbs Center for Economic Prosperity

JMI’s Sal Nuzzo a⁠t⁠ ⁠t⁠he Supreme Cour⁠t⁠ for Janus v. AFSCME: Par⁠t⁠ 2

By: Sal Nuzzo / 2018

Isn’t That the End of This Case?

Janus v. AFSCME- Part 2

(Read Part 1)

Boom. The words dropped like a bomb and for a brief second in the courtroom, everyone seemed to recognize the precision of the question and the way in which Associate Justice Anthony Kennedy was able to slice through the respondents’ case. For the first 35 minutes of the oral arguments, I was largely seeing what I had expected – Justices asking relatively leading questions of counsel with the ultimate goal of influencing their colleagues in some way. It appears, from a non-lawyer read, that Justices Alito and Roberts are favoring the arguments presented by the plaintiff, while Justices Kagan, Ginsburg, Sotomayor, and Breyer lean toward the respondent. As I’ve been told is typical, Justice Thomas hasn’t asked a question. And the newest Associate Justice – Neil Gorsuch – is noticeably silent on the far right of the bench. I’m waiting to hear an inquiry from him but, on this front, I’ll end the day disappointed (he didn’t utter a peep). In one moment of levity, Justice Sotomayor asks United States Solicitor General Noel Francisco (arguing for the U.S. Government’s position in the case) how many times in this term the Administration has flipped positions from prior administrations. (Apparently the answer is three).

As I’m attempting to follow along the legalese and discussions of stare decisis, precedents, and such, Justice Kennedy jumps in with his line of questions that are unique in two ways. One is that they are decidedly non-legal in nature and consequently I can understand them, and secondly is that they are far more pointed in nature. They don’t appear to be aimed at his colleagues on the bench but rather seem to express his exasperation that thus far the dialogue hasn’t really homed in on the pivotal issue. He’s going to get there, and get there fast. And he’s going to make it matter. In a blistering set of questions, Justice Kennedy cuts through the muck and yanks the salient issue right out of the respondent counsel’s mouth – and it was magnificent to watch.

After a series of quick questions in which counsel could barely keep up (I think he knew where it was headed), Justice Kennedy asks, “I’m asking whether or not in your view, if you do not prevail in this case, the unions will have less political influence: yes or no?” Respondent counsel can only muster, “Yes they will have less political influence.” Then Justice Kennedy twists the knife with the line I have seen in just about every narrative or article since, “Isn’t that the end of this case?” It’s brutal, and it’s brilliant.

The remainder of the arguments seem to trail downward from that point. If SCOTUS orals were a movie or play, Justice Kennedy’s questions were what amounted to the climax. The rest was denouement – it appeared from that point that the four Justices sympathetic to the respondents were struggling to take the argument in any other direction. Much to the pleasure of the plaintiff’s counsel, they did not seem to succeed.

The overall flow of the arguments was not what I expected. I will admit that I had envisioned counsel making an argument, which would then be followed by inquiries from the Bench. Nothing could be further from reality. Plaintiff’s counsel Bill Messenger is barely two paragraphs into his argument when Justice Ginsburg kicks off the questioning, with an assist from Justice Sotomayor. They’re attempting to lead Plaintiff’s counsel in a direction favorable to how they’d like the case to land. Something about restricting speech versus compelled speech. Based on his responses, I am guessing Mr. Messenger was prepared for this very line of questioning. He’s volleying back with a response and, while Justice Kennedy attempts to get a question in, Justice Ginsburg is having none of it.

One thing that seems abundantly clear from the entire hour – any discussion of Justice Ginsburg’s age and competence for the Bench are woefully misguided and completely misplaced. She is sharp, she is incisive, and she knows her arguments front and back. While I may disagree with her in a policy context, my respect for her is bolstered over the course of the proceeding. I can only hope to be half as sharp as she is in my 80s. Actually, I can only hope to be half as sharp as her right now, and I’m half her age.

For roughly the next 25 minutes, counsels on both sides debate with Justices on the Bench, who attempt to either lead a counsel down a path that would put them in conflict with their position, or maneuver answers into hypotheticals that would help support their position. The jousting is magnificent to watch and I am cognizant of the reality that I am getting to witness the law, as it is practiced, at its very highest level. The legal minds on both the Bench and at the counsels’ table are the best in the land, and they are clearly exhibiting it. It’s like getting to sit behind home plate with Mariano Rivera on the mound and Albert Pujols in the box.

And just as I am catching on to the back and forth, Chief Justice Roberts says, “Thank you, Counsel, the case is submitted.” And with that, tens of thousands of hours of legal work, preparation, moot court, and exhaustive study have concluded, and it is out of the lawyers’ hands and now in the hands of nine men and women who will decide a case that will impact tens of millions of residents in more than 20 states.

I quickly hustle back to the locker room to grab my phone and head down the main corridor of the Court building to the front exit. It’s there that I run into the Plaintiff himself, Mark Janus, looking half-relieved and half worn out from the morning. I introduce myself and shake his hand and thank him for all he’s been through. It’s clear that, while he is a spectacular advocate for his position and a wonderful man, he hadn’t thoroughly comprehended (or maybe hadn’t had the opportunity to comprehend) the sheer enormity and magnitude of the case until this very moment. He’s done. His journey from relatively obscure Illinois state worker to champion of free speech and workers’ rights on the steps of the highest court in the land is concluding. He looks to be perfectly content to head back to Illinois and back into the realm of normal life. I’m happy for him, regardless of the outcome of the case.

Exiting the Court, I discover I’m one of the first out and the vast area directly in front of the doors out to the bottom steps is completely bare, save for the press area off to the left. It’s a great sight, as the bottom steps are populated by hundreds of people rallying on both sides of the case. They are chanting and cheering loudly, as this is now their moment. The press gaggle is bigger than anything I’ve seen in Florida, and a quick glance reveals several notable faces – Shannon Bream of Fox News, Pete Williams of NBC, and many others. They’re waiting on the participants to give their takes from inside the Court like a post-game presser.

As I walk toward the crowd and take in the spectacle, I remember I am there to document it as much as I am there to enjoy it. Selfie stick out, I begin photographing and videoing the rallies, the press, the participants. I’m probably the least journalist-looking person in the entire crowd – completely wide-eyed and not really sure how to not get asked politely to exit the premises. Much to my surprise, nobody seems to mind me jostling around with an iPhone on a stick.

Thanks to our friends with Foley & Lardner, who worked with us on the amicus brief, I was able to secure a couple of minutes with the lead plaintiff’s counsel, Bill Messenger. A long-time litigator with the National Right to Work Foundation, Bill has spent his career advocating and litigating for workers around the country to have the freedom to choose what organizations and causes they support with their hard-earned dollars. Despite having just argued an incredibly monumental case before the Supreme Court of the United States, he seems fairly calm and collected. I realize I have neither the composure nor the constitution to be able to function at the level Bill just did. He graciously does a couple of minutes on video with me and doesn’t even mind when I must retake the whole thing because I didn’t hit the record button. I make a mental note to stick to policy briefs.

The next 20 minutes are a blur – watching interviews, listening to chants, attempting to look like a normal human being, it buzzes past as the adrenaline ebbs and flows. As the clock hits noon, the crowd begins to disperse, and the Courthouse steps take on their normal appearance. Rally attendees go back to whatever it was they were doing, and I realize that this grand event, while certainly big in the eyes of those present today, is but just one day in the term of the Court. One day in the 242-year arc of this great experiment in self-governance. I’m privileged and fortunate to get to see it close up. There are certainly days it seems messy, mean, and rough. There are times when I wonder if stresses to the system will overtake it. There are periods of time when it appears it can all come apart at the seams and we are governed by the loudest or most obnoxious among us.

This is not one of those days.