Theodore Olsen, Sonia Sotomayor,  Stephen Breyer, Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan.

By Robert Barnes, The Washington Post
Posted: 01/22/14, 8:06 AM PST |

The Supreme Court on Monday debated what one liberal justice said would be a “radical” restructuring of organized labor by prohibiting states from requiring public employees to pay fees to the unions that represent them.

The case from Illinois concerns home-care workers and whether those who do not join the public employees union must pay compulsory fees to cover the cost of collective bargaining. The Supreme Court since 1977 has said states have the power to require such payments — about half of them use it — so long as the fees are not used for political purposes.

But William Messenger, an attorney for the National Right to Work Legal Defense Foundation, said the court should reconsider that precedent. Forcing public employees to support a union with which they might disagree violates their constitutional rights of association and free speech, he said.

“Our position is that in the public sector when government is involved, compulsory fees are illegal under the First Amendment,” Messenger said.

The case pits right-to-work supporters against labor unions and the Obama administration, and just as predictably mostly split the justices along ideological lines.

Less predictably, the justice who seemed to hold the balance on the question was Antonin Scalia. He was part of the conservative majority in a case two terms ago that seemed to invite a challenge to the court’s 1977 ruling in Abood v. Detroit Board of Education.

But in Tuesday’s oral arguments, Scalia indicated that Messenger might be asking for too much.

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