SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - MARK JANUS, ) Petitioner, v. ) ) No. 16-1466 AMERICAN FEDERATION OF STATE, ) COUNTY, AND MUNICIPAL EMPLOYEES, ) COUNCIL 31, ET AL., ) Respondents. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 71 Place: Washington, D.C. Date: February 26, 2018 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 MARK JANUS, ) 4 5 Petitioner, v. ) ) No. 16-1466 6 AMERICAN FEDERATION OF STATE, ) 7 COUNTY, AND MUNICIPAL EMPLOYEES, ) 8 COUNCIL 31, ET AL., ) 9 10 Respondents. ) - - - - - - - - - - - - - - - - - - 11 Washington, D.C. 12 Monday, February 26, 2018 13 14 The above-entitled matter came on for oral 15 argument before the Supreme Court of the United States 16 at 10:06 a.m. 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 APPEARANCES: 2 3 4 WILLIAM L. MESSENGER, ESQ., Springfield, Virginia; on behalf of the Petitioner. 5 6 GEN. NOEL J. FRANCISCO, Solicitor General, 7 Department of Justice, Washington, D.C.; on 8 behalf of the United States, as amicus curiae, 9 in support of the Petitioner. 10 11 DAVID L. FRANKLIN, Solicitor General of Illinois, 12 Chicago, Illinois; on behalf of the State 13 Respondents. 14 15 16 DAVID C. FREDERICK, ESQ. Washington, D.C.; on behalf of Respondent AFSCME Council 31. 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 3 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 WILLIAM L. MESSENGER 4 On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 GEN. NOEL J. FRANCISCO 7 On behalf of the United States, 8 as amicus curiae, in support of 9 the Petitioner 10 ORAL ARGUMENT OF: 11 DAVID L. FRANKLIN 12 On behalf of the State Respondents 13 ORAL ARGUMENT OF: 14 DAVID C. FREDERICK 15 On behalf of Respondent 16 AFSCME Council 31 17 REBUTTAL ARGUMENT OF: 18 WILLIAM L. MESSENGER 19 On behalf of the Petitioner 20 21 22 23 24 25 Heritage Reporting Corporation PAGE: 4 22 35 51 68 Official - Subject to Final Review 4 1 P R O C E E D I N G S 2 3 (10:06 a.m.) CHIEF JUSTICE ROBERTS: We'll hear 4 argument first this morning in Case 16-1466, 5 Janus versus the American Federation of State, 6 County, and Municipal Employees. 7 Mr. Messenger. 8 ORAL ARGUMENT OF WILLIAM L. MESSENGER 9 ON BEHALF OF THE PETITIONER 10 11 12 MR. MESSENGER: Mr. Chief Justice, and may it please the Court: Abood should be overruled because it 13 failed to apply heightened First Amendment 14 scrutiny to a compulsory fee for speech to 15 influence governmental policies. 16 failure places it at odds with Harris, with 17 Knox, and a slew of other speech and 18 association precedents. 19 Abood's Now Respondents attempt to justify 20 Abood's results with rationales found nowhere 21 in that decision, which undercuts any stare 22 decisis value in retaining Abood. 23 JUSTICE GINSBURG: May I ask, 24 Mr. Messenger, if you are right about agency 25 fees, what about three things: One is student Heritage Reporting Corporation Official - Subject to Final Review 5 1 activities fees. 2 so, why? Another is mandatory bar association 3 payments. And the third is you have a public 4 sector case. 5 agency fees compelled by state law in the 6 private sector? 7 Are they different and, if What about the private sector, MR. MESSENGER: Yes, Your Honor. With 8 respect to the first two instances, the student 9 association or student fees and the bar 10 association fees, those cases are 11 distinguishable for reasons stated in Harris. 12 They're justified by different interests. 13 The state bar associations are 14 justified by the state's compelling government 15 interest in regulating the practice of law 16 before its courts. 17 fees are justified by the government's or what 18 -- a university's compelling interest in 19 setting up a viewpoint-neutral forum for 20 speech. 21 The student association And then, with respect to the private 22 sector cases, they hinge on a question of state 23 action. 24 union fees are being challenged. 25 private sector, you'd have a question of So, in this case, only public sector In the Heritage Reporting Corporation Official - Subject to Final Review 6 1 whether state action applied, and, therefore, 2 the rule of Janus would apply to that case. 3 JUSTICE SOTOMAYOR: I'm sorry, I 4 thought that we had always recognized that the 5 government as employer had a compelling 6 interest in regulating its employment 7 decisions. 8 9 We permit the government to fire people, deprive them of all money, not just a 10 fair share fee, but deprive them of any income 11 if they speak outside of the government's 12 approved policy messages or messages generally. 13 So, if we can permit the government as 14 employer to have a compelling interest to do 15 something as dramatic as firing someone, why 16 can't that interest in having workplace peace, 17 workplace routine in which issues are decided 18 in a -- in a collective way, why isn't that a 19 compelling interest comparable to the others? 20 MR. MESSENGER: Well, the government's 21 interests in restricting speech don't apply to 22 compelling support for speech. 23 oftentimes they cut the opposite way. 24 25 In fact, So the government's interest in restricting speech, for example, in the Hatch Heritage Reporting Corporation Official - Subject to Final Review 7 1 Act, restricting political activities, was in 2 preventing the politicalization of the 3 workforce and preventing government employees 4 from being organized into a political machine. 5 Of course, those same interests don't 6 justify forcing individuals to support the 7 speech of an advocacy group. 8 JUSTICE SOTOMAYOR: But that's no 9 different than forcing student -- student 10 participation in fees to provide a public 11 forum, to have a bar association regulated. 12 These are all forcing the subsidization of 13 private interests for a government purpose. 14 And the government purpose here is labor 15 relations and labor peace. 16 still haven't told me why that's not a 17 compelling state interest. 18 19 20 MR. MESSENGER: Why isn't -- you Well, irrespective of whether -­ JUSTICE SOTOMAYOR: 21 say state. 22 interest. Or -- I shouldn't A compelling federal -- government 23 MR. MESSENGER: 24 The Court doesn't need to reach 25 Yes, Your Honor. whether or not labor peace into that -- such Heritage Reporting Corporation Official - Subject to Final Review 8 1 interests are compelling because agency fees 2 are not a least restrictive means to satisfy 3 any labor peace interest the government may 4 have in listening to one union. 5 So the labor peace interest, as this 6 Court has explained in Abood, is the 7 government's interest in listening only to one 8 union so it doesn't have to listen to multiple 9 unions. 10 JUSTICE SOTOMAYOR: Well, there's 11 another way of doing student fees. 12 have students who don't pay not participate in 13 any student activity because the price of -- of 14 being permitted to participate. 15 bar associations that the state runs. 16 have alternatives of all kinds, but the 17 question is, is the alternative that the state 18 has chosen one that is well-fitted to the -- to 19 its need? 20 tailored? 21 You can You can have You can Is it well-tailored, narrowly I don't see how you can do that given 22 the interests of the government in ensuring 23 that unions represent everybody. 24 MR. MESSENGER: 25 Well, an agency fee isn't necessary for exclusive representation. Heritage Reporting Corporation Official - Subject to Final Review 9 1 2 JUSTICE SOTOMAYOR: Why not? You have free riding. 3 MR. MESSENGER: Well, the reason, Your 4 Honor, is exclusive representation in and of 5 itself is a valuable benefit for a union. 6 provides unions with extraordinary powers to 7 compel the government to listen to it at the 8 bargaining table, to not listen to other 9 advocacy groups. 10 JUSTICE GINSBURG: It But it drains it of 11 resources that make it an equal partner in the 12 marketing setting. 13 not only the people who are opposed to the 14 union but also union supporters who may think 15 I'd rather keep the money in my own pocket, and 16 then you'll have a union with diminished 17 resources, not able to investigate what it 18 should demand at the bargaining table, not 19 equal to the employer that it faces. 20 21 If you are right, that it's MR. MESSENGER: Well, I think there's two things in that question, Your Honor. 22 The first, the question is, does the 23 duty to represent nonmembers raise union 24 bargaining costs? 25 not. And I submit that it does The union -- there's no reason why Heritage Reporting Corporation Official - Subject to Final Review 10 1 negotiating a contract for all employees in a 2 unit would be more expensive than negotiating a 3 contract just for the union members, because 4 the union's discretion in bargaining is 5 incredibly wide. 6 union has to the nonmembers, which it assumes 7 over them by assuming exclusive representative 8 authority, doesn't necessarily add any costs 9 above and beyond what the union would already 10 11 12 And so the duty that the confer. JUSTICE GINSBURG: But you're not taking into account what I -­ 13 JUSTICE KENNEDY: Have unions -­ 14 JUSTICE GINSBURG: -- I suggested, 15 that it's not just the people who oppose the 16 union but the people who support the union but 17 say we have a chance to get out of paying fees 18 to the union, and so, although not for 19 idealogical reasons, we're going to pass and 20 we're not going to pay dues either. 21 MR. MESSENGER: Well, I submit, Your 22 Honor, it's immaterial why an individual does 23 not wish to support union advocacy. 24 Amendment prohibits the government from probing 25 into individuals' subjective belief. The First Heritage Reporting Corporation Official - Subject to Final Review 11 1 JUSTICE GINSBURG: So you're saying 2 that you do then recognize that the unions can 3 be in a position where they will be -- that the 4 resources available to them could be 5 substantially diminished? 6 MR. MESSENGER: Well, to -- to the 7 degree to which the union resources are 8 diminished by individuals exercising their 9 First Amendment right not to subsidize that 10 union, I submit that's a perfectly acceptable 11 result. 12 The -­ JUSTICE ALITO: Does -- does the 13 Constitution require states to demand that 14 unions provide services for nonmembers? 15 For example, is there a constitutional 16 requirement for a union to handle the 17 grievances of nonmembers, or is that something 18 that's imposed by state law? 19 MR. MESSENGER: It varies, Your Honor. 20 In the federal law, this Court implied the duty 21 of -­ 22 23 24 25 JUSTICE ALITO: Well, no, we're talking about state law. MR. MESSENGER: Yes. In state law, for example, in Illinois state law, there is a Heritage Reporting Corporation Official - Subject to Final Review 12 1 provision in the Illinois Labor Relations Act 2 that expressly provides a duty of fair 3 representation. 4 JUSTICE ALITO: 5 that. 6 required? Yeah, I understand Are they -- is that constitutionally 7 MR. MESSENGER: 8 JUSTICE KENNEDY: 9 No, Your Honor. With reference to some of the other cases they've discussed, have 10 the unions at any point in this litigation or 11 any point in their history ever said that 12 they're committed to the -- to the idea of 13 viewpoint neutrality? 14 MR. MESSENGER: 15 JUSTICE BREYER: No, Your Honor. I wonder, since your 16 time is limited, let me say three -- three 17 quick questions. 18 What you're doing basically is trying 19 to apply a more modern framework to some older 20 cases. This has been the law for 50 years just 21 about. Okay? 22 Holmes and Brandeis didn't know about 23 these modern framework. How many cases should 24 we go back? 25 modern frameworks to all old cases, begin with Do you think we should apply Heritage Reporting Corporation Official - Subject to Final Review 13 1 Marbury versus Madison? 2 good lawyers in this room. 3 all kinds of older cases where we haven't 4 applied modern frameworks. 5 There are lots of very They will think of So, one, what's your limiting 6 principle there? 7 principle on the matter that we're talking 8 about? 9 Two, what is your limiting I mean, Stewart, Justice Stewart, who 10 wrote Abood in the '70s, thought the case is 11 identical or near identical to the Railway 12 Labor Act cases. 13 railroad, they're regulated, government's 14 involved, just as your clients are involved, 15 you know, just as the unions here. 16 17 18 Railway Labor Act, that's a What's the distinction, if you're going to try to make one? And -- and -- and -- and really, 19 three, and this is for all of you, all the 20 lawyers here, what do you think of the -- what 21 I think of as a compromise put forth by 22 Justices Kennedy, Scalia, Souter, and O'Connor 23 in Lehnert, called to our attention 24 specifically by the brief of Professor Fried 25 and Professor Post? Does that solve most of Heritage Reporting Corporation Official - Subject to Final Review 14 1 2 your problem for any side? Those are the three. You see? Stare 3 decisis, even if it weren't there, how do you 4 distinguish all the other unions, particularly 5 those in regulated industries, and, three, what 6 about the compromise? 7 MR. MESSENGER: Yes. So, to address 8 your questions in order, Justice Breyer, on the 9 first point, Abood is not only inconsistent 10 with cases that came after it; it was 11 inconsistent with cases that came before it, 12 such as Elrod. 13 Justice Powell would have applied exacting 14 First Amendment scrutiny to patronage. 15 Even the dissent in Elrod, So Abood wasn't just a departure or 16 isn't just inconsistent with prior precedent or 17 -- sorry, subsequent precedents, but with the 18 precedents that came before it. 19 not necessarily be solely applying a new 20 doctrine to Abood but applying what the law was 21 even prior to Abood. 22 So this would With the Railway Labor Act, as this 23 Court explained in Harris, there you have the 24 private sector. 25 dealing with government, which, of course, is You don't have the union in Heritage Reporting Corporation Official - Subject to Final Review 15 1 political advocacy, and that political advocacy 2 is subject to heightened First Amendment 3 protection, which you don't necessarily have in 4 the private sector. 5 And then, with respect to the third 6 point, the test suggested in the dissent in 7 Lehnert, the problem with that is that it 8 allows for charging of collective bargaining 9 and anything else that the government decided 10 11 that the union had a duty to bargain over. So, in other words, that test, the 12 statutory duties test, allows the government to 13 decide what is constitutionally chargeable 14 under the First Amendment. 15 So that test would, of course, among 16 other things, allow for charging of collective 17 bargaining. 18 the core political activity, which we submit 19 individuals cannot be compelled to support. 20 But here collective bargaining is JUSTICE SOTOMAYOR: Is it just the 21 collective nature of the union? You're not 22 suggesting that if an employee goes to the 23 state and tries to negotiate his or her wages 24 that that's a First Amendment activity. 25 said it's not, right? Heritage Reporting Corporation We've Official - Subject to Final Review 16 1 MR. MESSENGER: Yes, Your Honor. 2 JUSTICE SOTOMAYOR: That 3 employment-related issues are not entitled to 4 First Amendment protection, correct? 5 6 MR. MESSENGER: Yes, Your Honor, generally speaking. 7 JUSTICE SOTOMAYOR: 8 is disciplined by the state for some 9 malfeasance, that's an employment-related issue 10 So, if an employee not entitled to First Amendment protection? 11 MR. MESSENGER: Oftentimes. 12 JUSTICE SOTOMAYOR: Oftentimes. If 13 employees come to the union -- come to the 14 state and want greater training, employment 15 issue, correct? 16 MR. MESSENGER: Generally, yes. 17 JUSTICE SOTOMAYOR: So why does it 18 transform into some entitlement to First 19 Amendment protection merely because a 20 collective body of employees are coming to the 21 table at once? 22 nature now of making these substantive 23 questions matters of public policy? 24 25 What's the transformative MR. MESSENGER: As this Court recognized in Harris, it's the scale. So here Heritage Reporting Corporation Official - Subject to Final Review 17 1 you have AFSCME bargaining over issues that 2 affect hundreds of millions of dollars and 3 affect thousands of employees across the board. 4 The scale of that is what makes it a political 5 -- 6 JUSTICE SOTOMAYOR: It's not going to 7 change whether the union asks for it or the 8 employees come -- what you're now saying is if 9 the employees came into an auditorium at a 10 business site of the state and every one of 11 them got up and said, I want higher wages, the 12 scale of that demand makes it protected by the 13 First Amendment? 14 demand. 15 It's still a work-related MR. MESSENGER: Well, in that 16 hypothetical, it would arguably be a matter of 17 public concern if there was a stage-in, you 18 know, at a public auditorium in which employees 19 stood up. 20 JUSTICE SOTOMAYOR: Well, let's -­ 21 let's not -- don't put in facts. 22 permission to be in the auditorium. 23 in as a group. 24 says, I want higher wages. 25 They have They walk Every one of them gets up and Is that an employment issue, or does Heritage Reporting Corporation Official - Subject to Final Review 18 1 that now become public policy because, 2 something that every employee wants, they've 3 now articulated? 4 MR. MESSENGER: I would submit that it 5 starts to move towards a matter of public 6 policy if it isn't entirely. 7 8 JUSTICE SOTOMAYOR: So it's now scale, not subject? 9 MR. MESSENGER: Well, it's both scale 10 and subject. I mean, here the subject are 11 wages, health insurance, many ways in which the 12 government operates which are very important 13 both to the public fisc and to the operation 14 and delivery of services. 15 JUSTICE SOTOMAYOR: 16 JUSTICE KAGAN: Scale -­ Mr. Messenger, may I 17 ask you about reliance interests here? 18 think that we have ever overruled a case where 19 reliance interests are remotely as strong as 20 they are here. 21 I don't So just a few things to put on the 22 table. Twenty-three states, the District of 23 Columbia, Puerto Rico, all would have their 24 statutes declared unconstitutional at once. 25 Thousands of municipalities would have Heritage Reporting Corporation Official - Subject to Final Review 19 1 contracts invalidated. 2 probably cover millions, maybe up to over 10 3 million, workers. 4 Those contracts So property and contract rights, the 5 -- the -- the -- the statutes of many states 6 and the livelihoods of millions of individuals 7 affected all at once. 8 9 10 When have we ever done something like that? What would be the justification for doing something like that? 11 MR. MESSENGER: 12 things, Justice Kagan. 13 Well, I'd say two The first is that the prevalence of 14 these compulsory unionism provisions isn't 15 reason for retaining Abood; it's reason for 16 reversing Abood. 17 Amendment violations, as you said, in 23 states 18 affected. 19 You have wide-scale First JUSTICE KAGAN: But that would be to 20 flip our usual stare decisis doctrine. 21 usual stare decisis doctrine makes it quite 22 clear that reliance is an important 23 consideration on the scales. 24 25 MR. MESSENGER: that's constitutional. Our Reliance on something Reliance on an illegal Heritage Reporting Corporation Official - Subject to Final Review 20 1 practice, no. For example, in Arizona v. Gant, 2 which involved searches of cars under the 3 Fourth Amendment, the Court said the fact this 4 was occurring in many places across the board 5 is a reason for reversing it, and many 6 individuals' Fourth Amendment rights were being 7 violated. 8 And so, in that instance, the 9 prevalence of compulsory unionism in the states 10 is a reason for reversing it. 11 And then, in terms of contracts in 12 general, I submit the contracts will survive, 13 except for the excision of the compulsory 14 unionism provisions due to severability. 15 JUSTICE KAGAN: Well, why is that? 16 How many of these contracts have severability 17 clauses, do you know? 18 MR. MESSENGER: I couldn't find a 19 number for the public sector, Your Honor, but 20 the general -- most contracts at least I have 21 seen for anecdotal do have severability clauses 22 and the general rule under the Restatement of 23 Contracts, I think it's 184. 24 25 JUSTICE BREYER: opposite. California says the I mean, California has a whole brief Heritage Reporting Corporation Official - Subject to Final Review 21 1 there. You've read that. 2 3 MR. MESSENGER: Honor. 4 5 Of course, yes, Your JUSTICE BREYER: So what's the answer to that? 6 MR. MESSENGER: The answer, Your 7 Honor, is that I submit they're severable in 8 California because they're not an essential 9 provision of the contract that would require 10 the excision of anything more than the clause. 11 JUSTICE KAGAN: Of course, even if 12 that's true, presumably they're bargained-for 13 provisions. 14 different if the unions and the employers had 15 known that this was going to be declared 16 unconstitutional. 17 The contract would have been So to leave the contract as is, except 18 for one particular bargained-for provision, is 19 to do something that's inequitable for the 20 union. 21 MR. MESSENGER: Well, I don't think 22 that's necessarily always true as a legal 23 matter. 24 unionism is mandated by the statute, for 25 example, in California. Foremost in some states, compulsory And in other states, Heritage Reporting Corporation Official - Subject to Final Review 22 1 once the provision is there, it stays there, so 2 it's not even a subject of bargaining usually. 3 It's something that was always there from the 4 prior contract. 5 It's taken as an assumption. And even to the extent it was a 6 bargained-for issue in a recent contract, these 7 contracts will expire the next one to three 8 years and need to be renegotiated anyways. 9 I don't think that really changes the reliance 10 interests. 11 12 Mr. Chief Justice, if I can reserve the remainder of my time. 13 14 So CHIEF JUSTICE ROBERTS: Thank you, counsel. 15 General Francisco. 16 ORAL ARGUMENT OF GENERAL NOEL J. FRANCISCO 17 ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, 18 IN SUPPORT OF THE PETITIONER 19 20 GENERAL FRANCISCO: Mr. Chief Justice, and may it please the Court: 21 I'd like to focus on three basic 22 issues. The first is the government's interest 23 in having a necessity of agency fees. 24 second is the stare decisis question that we've 25 been talking about, and then the third is the The Heritage Reporting Corporation Official - Subject to Final Review 23 1 2 Lehnert issue. In terms of whether agency fees are 3 necessary to further the compelling interest in 4 having an exclusive bargaining representative 5 on the other side of the table, I don't think 6 there's really any basis for concluding that. 7 For example, in the federal government, we 8 don't have agency fees either in the government 9 generally or under the -­ 10 11 12 13 14 JUSTICE SOTOMAYOR: We also have more benefits that are given without unions. GENERAL FRANCISCO: Service, Your Honor. Not in the Postal The Postal Service -­ JUSTICE SOTOMAYOR: Well, that may be 15 a different one, but doesn't that beg the 16 question, Mr. General, about not having a 17 record here? 18 that have been bandied back and forth by both 19 sides on the actual effects of this. 20 saying it's okay because the federal 21 government's the same, the Postal Service is 22 like other jobs, but that's a whole lot of 23 allegations about the reality, factual 24 reality -­ 25 It's an awful lot of assumptions GENERAL FRANCISCO: You're Right. Heritage Reporting Corporation Official - Subject to Final Review 24 1 2 3 JUSTICE SOTOMAYOR: -- of things that have not been tested anywhere. GENERAL FRANCISCO: Right. Well, two 4 responses, Your Honor. First, the Postal 5 Service does have the full range of 6 negotiation. 7 government, I would submit that the more 8 limited bargaining range should make it harder 9 for them to recruit members into the union. And in the rest of the federal 10 And, in fact, in the Postal Service, 11 according to Bureau of Labor Statistics data, 12 we find that about 94 percent of employees who 13 are subject to collective bargaining agreements 14 are members of the union even though you don't 15 have agency fees. 16 generally, including the Postal Service, that 17 number is about 80 percent, and if you just 18 take the -- the Postal Service out and look at 19 the federal government, it's still north of 20 80 percent. 21 22 In the federal government JUSTICE SOTOMAYOR: How much of the workplace -­ 23 GENERAL FRANCISCO: That's according 24 to Bureau of Labor Statistics data. 25 JUSTICE SOTOMAYOR: How much of the Heritage Reporting Corporation Official - Subject to Final Review 25 1 workplace is unionized for the federal 2 government? 3 GENERAL FRANCISCO: I believe that in 4 the federal government generally, about a 5 quarter of the workplace, a quarter to a third 6 of the workplace is unionized. 7 JUSTICE SOTOMAYOR: And how much is 8 their unionization in the general corporate 9 sector? 10 GENERAL FRANCISCO: I think -­ 11 JUSTICE SOTOMAYOR: Or private sector? 12 GENERAL FRANCISCO: My -- I -- I don't 13 know for sure. 14 I think it's less than that, but I'm not 15 exactly sure what the private sector rate is. 16 I think it's on the order of -­ JUSTICE SOTOMAYOR: In the mechanical 17 industry, in the printing industry, in -- I 18 know a lot of industries -­ 19 GENERAL FRANCISCO: Yeah. 20 JUSTICE SOTOMAYOR: -- that are 21 controlled by union. 22 23 24 25 GENERAL FRANCISCO: I don't have that JUSTICE SOTOMAYOR: I don't mean that number. in a negative sense. Heritage Reporting Corporation Official - Subject to Final Review 26 1 GENERAL FRANCISCO: No, no. 2 JUSTICE SOTOMAYOR: Meaning that 3 4 almost all work -­ GENERAL FRANCISCO: And I -- and I 5 don't have that number at the top of my head, 6 Your Honor. 7 JUSTICE KENNEDY: 8 trying to get to two other points. 9 You -- you were GENERAL FRANCISCO: Yes. So my other 10 point was on the motion to dismiss issue, the 11 need for a record, this case came up on a 12 motion to dismiss. 13 course is, as in Harris, you reverse the motion 14 to dismiss and you send it back. So I think the appropriate 15 Turning to the stare decisis point and 16 particularly the reliance interests, collective 17 bargaining agreements are generally two- to 18 four-year contracts. 19 all of them were negotiated under the shadow of 20 Harris and Knox. 21 was an enormous amount of reliance on the 22 continued vitality of Abood. 23 So that means that almost So I don't think that there But even if there were some reliance, 24 I think it would be very short-lived, until the 25 next negotiating session, where any new Heritage Reporting Corporation Official - Subject to Final Review 27 1 decisions from this Court would be factored in. 2 And I do agree that there also probably 3 wouldn't be much disruption at all since you 4 would simply invalidate individual agency fee 5 provisions. 6 Now -­ JUSTICE GINSBURG: General Francisco, 7 I would like to get your answer to the question 8 I asked Mr. Messenger and didn't have time to 9 ask him a follow-up. 10 Let's say you prevail in this case. 11 What happens in the private sector? 12 doctrine you know well, Shelley against 13 Kraemer, that says if a contract is illegal, 14 the court can't enforce it. 15 GENERAL FRANCISCO: We have a Uh-huh. 16 Respectfully, Your Honor, I don't think 17 anything would happen in the private sector for 18 largely the reasons that Justice Alito 19 identified in his Third Circuit opinion on the 20 issue and the D.C. Circuit identified in an 21 opinion that I -- I believe you were part of, 22 which held that in the private sector, there 23 simply is no state action when it comes to 24 collective bargaining agreements. 25 JUSTICE BREYER: Look, the -­ Heritage Reporting Corporation Official - Subject to Final Review 28 1 GENERAL FRANCISCO: That's also what 2 the United States argued in its Beck amicus 3 brief here a few -- a few years ago. 4 JUSTICE BREYER: Labor peace, I once 5 heard Archie Cox, maybe it was in your position 6 right here, say the greatest instrument for 7 labor peace and prosperity from the years 1945 8 to 1970 was grievance arbitration in the 9 unions. 10 GENERAL FRANCISCO: 11 JUSTICE BREYER: Uh-huh. So suddenly we're 12 changing the method of financing that. 13 say, well, it's just public unions. You 14 But if I were in a regulated industry, 15 and I read the Court's opinion siding with you, 16 I would wonder if it didn't apply to me. 17 GENERAL FRANCISCO: 18 JUSTICE BREYER: Uh-huh. And not all workers 19 are lawyers. And all they've seen is that this 20 Court has suddenly cut legs, at least one, out 21 of the financing of a system that at least in 22 some aspects, though it's debatable, some 23 people think it brought labor peace. 24 GENERAL FRANCISCO: 25 JUSTICE BREYER: Right. Now you are the Heritage Reporting Corporation Official - Subject to Final Review 29 1 government of the United States. 2 think about that? 3 GENERAL FRANCISCO: What do you Well, Your Honor, 4 I think that the core of this issue goes to -­ 5 and I'm reading from the agency brief -- the 6 agency fee provision itself, the cost of the 7 collective bargaining process. 8 9 And that's separate from the grievance process. I actually think the grievance 10 process raises serious First Amendment concerns 11 as well, but for purposes of this case, the 12 focus is on the cost of collective bargaining, 13 and I don't think you necessarily have to go 14 any further than that to resolve this case, 15 since the whole -­ 16 JUSTICE KAGAN: Please. 17 GENERAL FRANCISCO: -- since the whole 18 idea of agency fees, their justification and 19 their purpose, has been predicated on the need 20 to compel support for the collective bargaining 21 process. 22 JUSTICE KAGAN: General, an important 23 part of Mr. Messenger's argument is the idea 24 that all speech about employment conditions, 25 about pay, about vacation, you know, about all Heritage Reporting Corporation Official - Subject to Final Review 30 1 of the various employee benefits that -- that 2 are subjects of collective bargaining, that are 3 really the heart of collective bargaining, that 4 all speech about that is -- are matters of 5 public concern when it happens in the public 6 workplace because they all cost money and, as 7 taxpayers, we would be interested in things 8 that cost money. 9 position as well, that all of that speech is a 10 11 Is that the government's matter of public concern? GENERAL FRANCISCO: Yes, Your Honor. 12 I think in the public bargaining context, all 13 of it goes to the size, structure, cost of 14 government, and the delivery of public 15 services, although I would agree that there are 16 some things that more vividly implicate public 17 policy than others. 18 JUSTICE KAGAN: Can I ask -- and it 19 strikes me as a very unusual position for the 20 government to be taking, looking after the 21 long-term interests of the United States 22 government, because essentially what that means 23 is that you will have to litigate all 24 employee/employer disputes under the -­ 25 GENERAL FRANCISCO: Yeah. Heritage Reporting Corporation Official - Subject to Final Review 31 1 2 JUSTICE KAGAN: -- second step of Pickering rather than under the first -­ 3 GENERAL FRANCISCO: 4 JUSTICE KAGAN: Well -­ -- which is quite a 5 striking thing for the government to be saying 6 that it agrees with. 7 GENERAL FRANCISCO: Yeah. Well, I -­ 8 I very much disagree with that, Your Honor. I 9 think the Pickering framework is an established 10 framework that works very well, and the nature 11 of individual wage disputes, the reason it 12 rises to the level of public interest when it 13 comes to collective bargaining agreements is 14 because it really does all go to the overall 15 size, structure, and the cost of the 16 government. 17 Pickering is very different. JUSTICE KAGAN: So you're saying that 18 when a union collectively bargains, it's a 19 matter of public concern but that if employees 20 in their workplace, 10 or 20 of them, get 21 together without the formal collective 22 bargaining that a union does, that that's not a 23 matter of public concern? 24 25 GENERAL FRANCISCO: Very much so, Your Honor, because when an individual employee is Heritage Reporting Corporation Official - Subject to Final Review 32 1 negotiating with his employer over his 2 particular wage, that's a negotiation that's 3 taking place between the employee and the 4 employer. 5 In the public sector collective 6 bargaining context, it's taking place between a 7 private third-party organization, a union, and 8 the government in order to set the overall 9 size, scope, and structure of government. 10 JUSTICE KAGAN: Well, that union is a 11 representative of the employees and has been 12 chosen to represent the employees so that the 13 employees can better wield their power -­ 14 GENERAL FRANCISCO: 15 JUSTICE KAGAN: Right. And -­ -- over terms and 16 conditions of employment. So why should it 17 matter -- I mean, that's -- I'm -- I'm trying 18 to understand this because it struck me as a 19 quite amazing thing -­ 20 GENERAL FRANCISCO: 21 JUSTICE KAGAN: Yeah. -- for the government 22 to be saying that these were matters of public 23 concern. 24 get together and say we want higher wages and 25 then, on the other hand, if employees get Why should it matter if 50 employees Heritage Reporting Corporation Official - Subject to Final Review 33 1 together and say, you know what, we think it's 2 right to elect a union so that the union can 3 say that, it's the exact same subjects and the 4 exact same speech that's going to be involved. 5 GENERAL FRANCISCO: And I think it 6 matters for two reasons: 7 the issue. 8 it's the nature of Pickering. 9 One is the scope of But, two, and more importantly, Even in Pickering, the government is 10 allowed to prohibit core political speech when 11 it interferes with the employee's ability to do 12 their job. 13 JUSTICE SOTOMAYOR: I'm sorry. 14 GENERAL FRANCISCO: And that's the -­ 15 JUSTICE SOTOMAYOR: If we're going to 16 get into scope under the Pickering test, then 17 the employee who, contrary to the chain of 18 command, talks about rampant corruption in a 19 government agency, then we're not going to 20 permit, as we already have, that employee to be 21 fired because the scope of that affects the 22 public fisc in a huge way. 23 GENERAL FRANCISCO: 24 25 I very much disagree with that, Your Honor. JUSTICE SOTOMAYOR: I -- I -- I don't Heritage Reporting Corporation Official - Subject to Final Review 34 1 understand what you're arguing. 2 radical new position on your part. 3 4 This is such a GENERAL FRANCISCO: I don't -- I don't JUSTICE SOTOMAYOR: Mr. -- Mr. think -­ 5 6 General, by the way, how many times this term 7 already have you flipped positions from prior 8 administrations? 9 10 GENERAL FRANCISCO: believe -­ 11 12 13 Your Honor, I JUSTICE SOTOMAYOR: This may be -- how GENERAL FRANCISCO: Your Honor, I many? 14 think that we have revised the position in so 15 far three cases. 16 JUSTICE BREYER: That's fair. 17 Regardless, what is -- what is the answer to 18 Justice Kagan's question? 19 GENERAL FRANCISCO: Yeah. The answer 20 to the question goes to the nature of the 21 Pickering inquiry itself. 22 the government's interest in controlling the 23 words and actions of its employees in order to 24 make sure they're doing their jobs. 25 Pickering reflects And Pickering reflects the teaching Heritage Reporting Corporation Official - Subject to Final Review 35 1 that heightened scrutiny is fundamentally 2 incompatible with that interest, since if you 3 apply heightened scrutiny to it, you basically 4 prohibit employee -- employers from controlling 5 their words and actions. 6 corresponding interest when it comes to 7 compelling employees to subsidize third-party 8 advocacy. 9 10 11 12 13 14 15 16 17 But there's no CHIEF JUSTICE ROBERTS: Thank you, General. Mr. Franklin. ORAL ARGUMENT OF DAVID L. FRANKLIN, SOLICITOR GENERAL OF ILLINOIS, ON BEHALF OF THE STATE RESPONDENTS MR. FRANKLIN: Thank you, Mr. Chief Justice, and may it please the Court: This Court's cases uniformly recognize 18 that the state has a much freer hand when it 19 manages its personnel as an employer than when 20 it regulates its citizens as a sovereign, and 21 this has come up already today, that freer hand 22 includes broad authority to put conditions on 23 employees' speech. 24 25 Now my friends on the other side this morning argue that that deference to the Heritage Reporting Corporation Official - Subject to Final Review 36 1 employer's prerogatives somehow depends on the 2 scale or the scope of the speech in question. 3 That has never been the law. 4 The government is still acting as an 5 employer when it treats with its employees as a 6 group or as a whole. 7 repeatedly used the Pickering framework and 8 other deferential public employee tests to 9 uphold generally applicable workplace policies. 10 That's why this Court has You see that in the Letter Carriers 11 case, upholding the Hatch Act. 12 San Diego versus Roe, the rule in Garcetti 13 applies to millions of public employees around 14 the country. 15 JUSTICE KENNEDY: You see that in Garcetti involved 16 government speech. What we're talking about 17 here is compelled justification and compelled 18 subsidization of a private party, a private 19 party that expresses political views 20 constantly. 21 MR. FRANKLIN: I'm happy to speak to 22 that, Justice Kennedy. 23 Garcetti case is an official duties case, and 24 we're not arguing this case as an official 25 duties case. You're right. The Heritage Reporting Corporation Official - Subject to Final Review 37 1 However, agency fees are a condition 2 of public employment because they pay for the 3 workplace services -- not just collective 4 bargaining -- but as Justice Breyer pointed out 5 referencing General Cox, day-to-day workplace 6 grievance resolution under an employment 7 contract. 8 speech by an employee representative to an 9 employer in an employment -­ 10 All of those activities involve JUSTICE KENNEDY: Suppose that -­ 11 suppose that 80 percent of the fees of the 12 union dues went to matters that were highly 13 political in nature and 20 percent to wage and 14 grievance -- wage hour -- wage negotiations and 15 grievances. 16 Would that change your view? MR. FRANKLIN: I -- I don't know that 17 it would, Your Honor. 18 case, the Keller case, Beck, Ellis, all of them 19 -- 20 You know, the Abood JUSTICE KENNEDY: Then -- then it 21 seems -- then it seems to me your argument 22 doesn't have much weight. 23 MR. FRANKLIN: Well, first of all, we 24 don't know what percentage of the union's 25 activities are wrapped up with grievances. Heritage Reporting Corporation If Official - Subject to Final Review 38 1 you -- you know, we don't have a record here. 2 We're on a motion to dismiss. 3 But if you look at publicly available 4 Hudson notices that do break out categories of 5 chargeable expenses in this way, which ours in 6 the record doesn't happen to do, you'll find 7 that in many cases, especially in the out-years 8 when the CBA is not being renegotiated, charges 9 for field representatives -- those are the 10 people in -- day in and day out who are doing 11 workplace grievance work, advising employees, 12 et cetera -- can be three times, six times, 13 seven times as much on the chargeable expenses 14 line than the line for collective bargaining. 15 So to decide this case in an 16 evidentiary vacuum on the basis of assumptions 17 about how that speech breaks down or how those 18 expenses break down would in our view be 19 irresponsible, frankly, because what you've got 20 -- 21 JUSTICE ALITO: There are -- there are 22 numerous differences between Pickering and the 23 situation here, but let me just ask you about 24 one. 25 the authority of the State of Illinois to Do you think there are any limitations on Heritage Reporting Corporation Official - Subject to Final Review 39 1 compel its employees to say what the state 2 wants them to say? 3 limitations, what are they? 4 And if there are MR. FRANKLIN: If the -- if what the 5 state wants them to say is a function of their 6 official duties in the workplace, that's 7 Garcetti -­ 8 9 JUSTICE ALITO: No, if it's not a function of their official duties. I 10 understand you could not -- you probably agree 11 with the position you're arguing, but if you 12 didn't, coming here representing the State of 13 Illinois, you couldn't just argue what you 14 like. 15 16 MR. FRANKLIN: behind me. 17 JUSTICE ALITO: 18 (Laughter.) 19 MR. FRANKLIN: 20 21 22 23 24 25 No, my boss is right That's right. I -- I -- I -- I'm acting pursuant to official duties, Your Honor. JUSTICE ALITO: I know. I understand that and in that situation. MR. FRANKLIN: Right. No, but, I understand you're not -­ JUSTICE ALITO: But aside from your Heritage Reporting Corporation Official - Subject to Final Review 40 1 official duties, are there any limitations? 2 MR. FRANKLIN: 3 JUSTICE ALITO: 4 MR. FRANKLIN: Yes. What are they? What the Garcetti case 5 underlines is that when the state takes the 6 employment relationship and exploits or 7 leverages that relationship in such a way as to 8 have an effect on the broader marketplace of 9 citizen speech, so that the employer interest 10 is really pretextual, then we're --- we've got 11 a different story. 12 13 14 Pickering accounts for this, Justice Alito. JUSTICE ALITO: Well, let me ask you, 15 I'll give you a concrete situation. In 16 Connick, an assistant district attorney -- the 17 Court held that an assistant district attorney 18 could be fired for circulating a writing that 19 suggested that there was a lack of confidence 20 in the supervisors in the office. 21 was a limitation on what she could say. Okay? It 22 Do you think the case would have been 23 the same if the district attorney required the 24 assistant district attorney to appear before a 25 meeting of everybody in the office and say: Heritage Reporting Corporation I Official - Subject to Final Review 41 1 love my supervisors; they are the best 2 supervisors anybody could possibly want? 3 MR. FRANKLIN: It would -- I'll answer 4 your question. 5 has to be, though, because I want to lay this 6 marker down, that would still be analyzed under 7 Pickering, step 2. 8 9 10 But the preface to my answer Okay? Under Pickering, step 2, we -- we'd assess the strength of the state's -­ JUSTICE ALITO: No, the Court said 11 that that was a matter of -- that was a -- that 12 was a subject of private concern. 13 MR. FRANKLIN: Well, it's possible 14 that if you've got an Orwellian scenario where 15 the employee is being required in the workplace 16 to speak about matters of public concern, we 17 would get to step 2. 18 19 20 JUSTICE ALITO: Private concern. Private concern. MR. FRANKLIN: What we wouldn't get to 21 is strict scrutiny then. The -- the -- the -­ 22 the Petitioner wants to vault over all of the 23 break points in this Court's First Amendment 24 law with respect to public employees and go 25 straight to strict scrutiny. Heritage Reporting Corporation Official - Subject to Final Review 42 1 And the fact is this Court has never 2 applied strict scrutiny to a condition of 3 public employment that was backed by a bona 4 fide interest that the state has as an 5 employer. 6 Never, not once. And I'm happy to talk about the -- the 7 political affiliation cases, because I don't 8 think they are to the contrary. 9 So, you know, implicit I think in your 10 question, Justice Alito, was the distinction 11 that my friend tried to draw between compulsion 12 and restriction. 13 and again in Wooley, in Riley, and elsewhere, 14 that compulsion and restriction of speech are 15 two sides of the same coin. 16 But this Court has said again JUSTICE ALITO: Then why won't you 17 answer my question about what the assistant 18 district attorney could be required to do? 19 Throughout history, many people have 20 drawn a line between a restriction on their 21 speech and compelled speech. 22 I'll give you an example that's only 23 -- that's quite different given the nature of 24 the -- of the subject from what's involved 25 here. Heritage Reporting Corporation Official - Subject to Final Review 43 1 Do you remember the -- the -- the 2 movie and the play "A Man For All Seasons"? 3 Thomas Moore didn't insist on saying that he 4 thought the act of supremacy was wrong, but he 5 drew a line and paid for it with his life 6 because he would not affirmatively say that it 7 was wrong. 8 So When you compel somebody to speak, 9 don't you infringe that person's dignity and 10 conscience in a way that you do not when you 11 restrict what the person says? 12 MR. FRANKLIN: You do, Your Honor, in 13 some circumstances. 14 about here is a compelled payment of a fee. 15 it's one step removed from compelled speech. 16 But what we're talking And I don't want to disparage the 17 First Amendment interests that are at issue 18 here. 19 seriously. 20 that agency fees are not "A Man For All 21 Seasons" scenario by any stretch. 22 -- 23 24 25 So Abood recognized them. We take them But it's important to recognize JUSTICE ALITO: They don't No, they're not a -­ it's not "A Man for All Seasons" scenario. MR. FRANKLIN: Right. Heritage Reporting Corporation Official - Subject to Final Review 44 1 JUSTICE ALITO: But I'm just asking 2 you about the point whether you think that 3 compelling somebody to speak is exactly the 4 same thing as saying you may not speak? 5 MR. FRANKLIN: 6 the same, Your Honor. 7 JUSTICE ALITO: 8 MR. FRANKLIN: 9 10 No, it's not exactly No. The Pickering balance could come out differently in certain instances. 11 I would grant you that. I do think, not to use Garcetti again, 12 but if Mr. Ceballos had been required to write 13 a disposition memo and has said I won't do it, 14 as opposed to what actually happened, which was 15 that he wrote one and was disciplined for what 16 was in it, nothing about the logic or the 17 outcome would change. 18 JUSTICE SOTOMAYOR: Counsel, what is 19 there -- what is there about compelled speech? 20 I mean, our line has drawn a big difference 21 between compelled speech and compelled subsidy. 22 MR. FRANKLIN: 23 Justice Sotomayor. 24 cases -­ 25 I agree with that, I mean, if you look at the JUSTICE SOTOMAYOR: And -- and we've Heritage Reporting Corporation Official - Subject to Final Review 45 1 compelled people to pay bar associations, so 2 long as you're not compelled or stopped from 3 speaking when you disagree. 4 a compelled subsidy. 5 MR. FRANKLIN: 6 JUSTICE SOTOMAYOR: We've said that's And all -­ Bar members can 7 come out any day they want and say they don't 8 take the same position on a policy question as 9 the bar association. Any union member is free 10 to get up publicly in any setting he or she 11 wants to say they don't agree with the position 12 the union is taking, correct? 13 MR. FRANKLIN: Correct. And all of 14 those cases, Keller, Southworth, Glickman, were 15 outside of the workplace context, where the 16 state has always been recognized to have 17 paramount interests in ensuring that its 18 managerial prerogatives can be carried out. 19 You know, the state's interest here, 20 if I can spend just a few moments talking about 21 that, is, first, we have an interest in dealing 22 with a single spokesman for the -- for the 23 employees. 24 imposing on that spokesman a legal duty to 25 represent everyone. Second, we have an interest in Heritage Reporting Corporation Official - Subject to Final Review 46 1 But as regards agency fees, they are 2 complementary to those first two interests. 3 They serve our managerial interests in two 4 ways. 5 situation where some employees bear the cost of 6 representing others who contribute nothing. 7 That kind of two-tiered workplace would be 8 corrosive to our ability to cultivate 9 collaboration, cohesion, good working 10 First, they allow us to avoid a relationships among our personnel. 11 Second, independent of that, we have 12 an interest at the end of the day in being able 13 to work with a stable, responsible, independent 14 counterparty that's well-resourced enough that 15 it can be a partner with us in the process of 16 not only contract negotiation -­ 17 JUSTICE KENNEDY: It can be a partner 18 with you in advocating for a greater size 19 workforce, against privatization, against merit 20 promotion, against -- for teacher tenure, for 21 higher wages, for massive government, for 22 increasing bonded indebtedness, for increasing 23 taxes? 24 has? 25 That's -- that's the interest the state MR. FRANKLIN: No. The -- the state Heritage Reporting Corporation Official - Subject to Final Review 47 1 2 has no interest or no overriding interest -­ JUSTICE KENNEDY: Doesn't it -­ 3 doesn't it -- doesn't it blink reality to deny 4 that that is what's happening here? 5 MR. FRANKLIN: We -- with all due 6 respect, Justice Kennedy, we've never denied 7 that many of the topics that come up at the 8 bargaining table with public employee unions 9 have serious fiscal and public policy 10 11 implications. We've never denied that. JUSTICE BREYER: 12 about the compromise? 13 MR. FRANKLIN: All right. So what The -- the line that 14 Justice Scalia drew in his Lehnert separate 15 opinion was, in our view, superior to the one 16 that was drawn by the plurality. 17 We've offered a test for where to draw 18 the line between chargeable and non-chargeable 19 expenses that, in practice, would overlap with, 20 would coincide with, Justice Scalia's line in 21 most cases, but the reason that we think that 22 it's superior to the plurality's line is that 23 the germaneness test does have a vagueness 24 problem and in -- in some instances, it allows 25 what it shouldn't allow, which is, for Heritage Reporting Corporation Official - Subject to Final Review 48 1 chargeability, for speech to the government as 2 a sovereign. 3 be drawn there. 4 And we think a very firm line can JUSTICE KAGAN: Mr. -- Mr. Franklin, 5 Mr. Messenger has suggested, and -- and -- and 6 General Francisco, that if we overruled Abood, 7 things would in a few years get back to normal. 8 The state would pass a new statute, and these 9 municipal contracts would all be renegotiated 10 and it wouldn't be any real issue. 11 So could you -- what do you think 12 about that? 13 any, if the state -- if -- if the Court were to 14 overrule Abood? 15 What would the difficulties be, if MR. FRANKLIN: I'm happy to speak to 16 that, Justice Kagan. 17 obviously, we're on a motion to dismiss, but 18 more broadly, what we know is that tangibly, 19 when these kinds of obligations of financial 20 support become voluntary, union membership goes 21 down, union density rates go down, union 22 resources go down. 23 again. 24 foundational text of behavioral economics. 25 Here's what we know, and, We've seen it again and Mancur Olson spoke about it in the We also know that, intangibly, there Heritage Reporting Corporation Official - Subject to Final Review 49 1 are plenty of studies that show that when 2 unions are deprived of agency fees, they tend 3 to become more militant, more confrontational, 4 they go out in search of short-term gains that 5 they can bring back to their members and say 6 stick with us. 7 CHIEF JUSTICE ROBERTS: Well, the 8 argument on the other side, of course, is that 9 the need to attract voluntary payments will 10 make the unions more efficient, more effective, 11 more attractive to a broader group of their 12 employees. What's wrong with that? 13 MR. FRANKLIN: Well, two things that 14 -- that I would say about that. 15 studies that I've read indicate that, yes, 16 there can be an initial first flush of 17 mobilization and organizing when something like 18 this gets taken away, but that over the long 19 term, human nature and basic economics dictate 20 that the free-rider problem will become endemic 21 and, not only that, but contagious, because if 22 I'm an employee and I stick with a union and 23 others over time decide not to, my fees and my 24 dues are going to go up and up and up and the 25 pressure on me to make the same choice will First, the Heritage Reporting Corporation Official - Subject to Final Review 50 1 increase as well. 2 But the other point I'd make would be 3 a legal point. You know, this Court has said, 4 for example, in the Connick case that there 5 ought to be judicial deference to the 6 predictive judgments about workplace harm and 7 that in particular -- this is a quote from 8 Connick -- "we do not see the necessity for an 9 employer to allow events to unfold to the 10 extent that the destruction of working 11 relationships has to be manifest before the 12 state can take prophylactic action to stop it." 13 This is an area, Your Honor, where not 14 only has this Court -- we're, of course, aware 15 this Court has addressed this topic three times 16 in the past, what, four years, but also the 17 people around the country are addressing this 18 issue in a very visible and sustained way. 19 JUSTICE KAGAN: Mr. -- Mr. Franklin, I 20 mean, you just addressed what you considered to 21 be the harmful effects of a different rule, but 22 I was trying to get at a slightly different 23 question. 24 what are the effects on -- given that this rule 25 has been in place for so long? I was asking you, even beyond that, Heritage Reporting Corporation Official - Subject to Final Review 51 1 MR. FRANKLIN: Mr. Chief Justice -­ 2 CHIEF JUSTICE ROBERTS: 3 MR. FRANKLIN: 4 We do think the reliance interests are Please. -- may I respond? 5 serious here. Under state law, because of the 6 severability clause, there would be state law 7 contract issues. 8 bargain that kicks in under state law where we 9 would have to renegotiate not only this There might even be a duty to 10 provision but surrounding provisions. 11 serious reliance interest in our view. 12 Thank you. 13 CHIEF JUSTICE ROBERTS: 14 15 That's a Thank you, counsel. Mr. Frederick. 16 ORAL ARGUMENT OF DAVID C. FREDERICK 17 ON BEHALF OF RESPONDENT AFSCME COUNCIL 31 18 19 20 MR. FREDERICK: Thank you, Mr. Chief Justice, and may it please the Court: I would note at the beginning that all 21 of these arguments were before the Court 40 22 years ago in Abood. 23 unanimously upheld the idea of agency fees, it 24 considered whether or not these issues would 25 constrain the constitutional prerogatives of And when the Court Heritage Reporting Corporation Official - Subject to Final Review 52 1 government to act under democratic impulses to 2 come up with a system that would fit the local 3 culture, history, private sector background of 4 what state governments were having to do to 5 recruit and attract the most willing and able 6 people to discharge the public services that 7 public employees are required to perform. 8 So, when this Court addressed in 9 Lehnert the question of how do you draw the 10 line between those fees that are deemed to be 11 ideological and those that are deemed to be 12 part of a statutorily mandated process, the 13 Court cleaved, and the question of whether or 14 not the statute mandated, as it does here, 15 exclusive representation and the union is 16 required to represent the minority members, 17 what Justice Scalia said was it is fair to 18 assign a fee for the services that the union by 19 statute is required to provide. 20 JUSTICE ALITO: And what if the 21 statute -- what if the state statute says that 22 lobbying is a man -- is a mandatory subject of 23 bargaining? 24 25 MR. FREDERICK: Well, I -- I think that the question -- I guess, what do you mean Heritage Reporting Corporation Official - Subject to Final Review 53 1 by lobbying, Justice Alito? 2 exactly what you mean. 3 JUSTICE ALITO: I'm not sure Well, there's no -- is 4 there any limit on what states can make a 5 mandatory subject of collective bargaining? 6 if the test is whether it's -- whether the -­ 7 it's mandated by the -- by the state, the state 8 can make anything it wants a mandatory subject 9 of bargaining. 10 MR. FREDERICK: So Justice Alito, I would 11 say that that hypothetical is so far outside of 12 what this case is really all about that if you 13 think that there's a problem, that if any state 14 ever in the union would come up with some 15 requirement like that as part of collective 16 bargaining, you have the opportunity to review 17 it at this time. 18 But what we're talking about here is a 19 system that is well settled within the states 20 to allow for this kind of dynamic interchange 21 for the benefit of management. 22 JUSTICE KENNEDY: Well, do you think 23 that this case affects the political influence 24 of the unions? 25 MR. FREDERICK: No. The reason -­ Heritage Reporting Corporation Official - Subject to Final Review 54 1 JUSTICE KENNEDY: So you've -- I can 2 try to find a union newsletter which says don't 3 worry about the Supreme Court, our political 4 influence will be exactly the same as it was 5 before, if this case comes out against us? 6 MR. FREDERICK: That's not a 7 chargeable expense, Justice Kennedy. 8 talking about -­ 9 JUSTICE KENNEDY: We're 10 MR. FREDERICK: 11 JUSTICE KENNEDY: I'm asking -­ Chargeable -­ I'm asking you 12 whether or not in your view, if you do not 13 prevail in this case, the unions will have less 14 political influence; yes or no? 15 MR. FREDERICK: 16 less political influence. 17 18 Yes, they will have JUSTICE KENNEDY: Isn't that the end of this case? 19 MR. FREDERICK: It is not the end of 20 the case, Your Honor, because that is not the 21 question. 22 of our sovereign system, have the authority and 23 the prerogative to set up a collective 24 bargaining system in which they mandate that 25 the union is going to represent minority The question is: Do states, as part Heritage Reporting Corporation Official - Subject to Final Review 55 1 interests on pain of being subject to any fair 2 labor practice. 3 JUSTICE KENNEDY: And in which they 4 mandate people that object to certain union 5 policies to pay for the implementation of those 6 policies against their First Amendment 7 interests? 8 MR. FREDERICK: Justice Kennedy, I 9 would ask you to read Justice Harlan's opinion 10 in Lathrop where he addressed every single one 11 of those considerations. 12 JUSTICE KENNEDY: 13 I -- I read it, I think, last night between 7:00 and 8:30. 14 (Laughter.) 15 MR. FREDERICK: It's a wonderful -­ 16 it's a wonderful opinion, because what he says 17 is that the -- what he says is that the 18 subsidization goes to the purpose of the 19 organization, here that is state-mandated 20 collective bargaining, and in which the person 21 who doesn't agree with the positions basically 22 gets two cracks. 23 One is to try to persuade the group 24 that he's right and, if that doesn't fail, he 25 still has his conscience and his speech to Heritage Reporting Corporation Official - Subject to Final Review 56 1 speak outside as a citizen to explain why that 2 position is wrong. 3 4 JUSTICE BREYER: Is -- is it possible to -­ 5 JUSTICE ALITO: Mr. Frederick, when I 6 -- when I read your brief I saw something I 7 thought I would never see in a brief filed by a 8 public employee union, and that is the argument 9 that the original meaning of the Constitution 10 is that public employees have no free speech 11 rights. 12 Where do you want us to go with that? 13 MR. FREDERICK: Well -­ 14 JUSTICE ALITO: Should -- should we 15 adopt that rule? 16 MR. FREDERICK: What I would say is 17 that what this Court, Justice White's opinion 18 in Connick, explains that if you look at this 19 from a question of what are the three choices 20 before you, at the origins, there were no 21 rights. 22 What they are asking for is basically 23 unfettered First Amendment for public servants 24 and what Justice White explained was that, as 25 the First Amendment evolved, there were Heritage Reporting Corporation Official - Subject to Final Review 57 1 limitations on what the government could do 2 with respect to certain expression, but the 3 core principle, from the founding to today, is 4 that government has a free rein in regulating 5 expressive rights in its workplace. 6 That principle from the founding to 7 today is at stake here because what they are 8 saying is that every grievance, every 9 employment issue, becomes a constitutional 10 issue. And Justice White's opinion in Connick 11 says, of course you can't run government if 12 that becomes the principle -­ 13 14 JUSTICE ALITO: Do you think that's a fair characterization of their argument? 15 MR. FREDERICK: I do think that it's a 16 fair characterization insofar as what they say 17 is the collective bargaining issues that are in 18 the contract are all raising matters of public 19 concern. 20 You could look at them. They are 21 talking about who gets assignments on holidays? 22 What are leave policies all about? 23 do not affect the public fisc at all but go to 24 who can manage the workplace in an appropriate 25 way where there is buy-in by the employee -­ Things that Heritage Reporting Corporation Official - Subject to Final Review 58 1 JUSTICE KAGAN: If I understood -­ 2 JUSTICE BREYER: Can you do that? Can 3 you limit it to wages, hours, working 4 conditions, where mandated as subjects of 5 compulsory bargaining by the state, those three 6 terms have a hundred years of history written 7 around them. 8 administer and should keep the things like 9 lobbying and so forth out of it. It shouldn't be hard to 10 MR. FREDERICK: 11 even in this statute -­ 12 13 That's correct. JUSTICE BREYER: And Is that correct? Is that what you favor? 14 MR. FREDERICK: Yes. 15 JUSTICE BREYER: It is. And can we get that 16 from the Connick -- from the Connick -- from 17 the Lehnert Kennedy, Scalia compromise there? 18 MR. FREDERICK: Yes, you can, Justice 19 Breyer. 20 here has carved out the questions about 21 managerial discretion. 22 cannot be bargained for. 23 And I would point out that the state Managerial policy The state's budget, that can't be 24 bargained for. 25 -- So what we're talking about is Heritage Reporting Corporation Official - Subject to Final Review 59 1 2 CHIEF JUSTICE ROBERTS: -- 3 4 Well how does MR. FREDERICK: -- how you manage the workplace. 5 CHIEF JUSTICE ROBERTS: How do 6 negotiation over wages not affect the state 7 budget? 8 9 MR. FREDERICK: Your Honor, what essentially happens as I understand it is that 10 either the budget is set and the negotiation 11 occurs within that parameter or the Governor 12 takes the collective bargaining agreement to 13 the state and the legislature decides to either 14 ratify it or not. 15 CHIEF JUSTICE ROBERTS: So the public 16 unions do not engage in advocacy with respect 17 to the state budget to the extent that impacts 18 the available wages? 19 MR. FREDERICK: I think -- I wouldn't 20 put it quite that way. 21 that of course most public servants are 22 underpaid, and I will stipulate to that before 23 this body. 24 (Laughter.) 25 MR. FREDERICK: What I would say is And the question is -­ Heritage Reporting Corporation Official - Subject to Final Review 60 1 the question is how do you come to the 2 appropriate compromises in order to achieve a 3 system that attracts the best workers? 4 JUSTICE KENNEDY: I just want to make 5 sure that if I want to write something down to 6 get -- the amount of wages paid to government 7 employees, the size of the work force, the 8 amount of overtime, and the existence of tenure 9 do not affect the amount of the state budget? 10 11 12 13 14 15 That's what I have got down. MR. FREDERICK: No. What I'm saying, Your Honor -­ JUSTICE KENNEDY: Isn't that what you just said? MR. FREDERICK: What I said is that in 16 different states the system works differently. 17 Sometimes the budget is set first and then the 18 bargaining happens and sometimes the bargaining 19 happens and, if the legislature doesn't think 20 it fits within the budget, they say we're not 21 going to ratify this or we're going to ratify 22 the budget, you go back and renegotiate this to 23 make it fit. 24 25 JUSTICE KAGAN: Mr. Frederick, if I understood General Francisco's argument, it is Heritage Reporting Corporation Official - Subject to Final Review 61 1 that speech as to matters of pay and benefits 2 and employment conditions and so forth are 3 matters of public concern when they are 4 addressed in a collective bargaining framework, 5 but are not matters of public concern when they 6 are addressed outside of a collective 7 bargaining framework by individual employees. 8 Tell -- tell me about that. 9 What do you think of that? 10 MR. FREDERICK: I don't know any case 11 of this Court that hinges the First Amendment 12 prerogatives of the government on the scope or 13 manner of the speech with respect to that. 14 And in fact, as my colleague said, 15 when this Court upheld the Hatch Act, that 16 applied to all workers. 17 Court applied Pickering balancing to say that 18 the government interest was sufficient to 19 outweigh the restrictions on the employee's 20 speech. 21 And the -- and the And the Court also did the same thing. 22 It applied the same Pickering balance when it 23 decided that it was constitutional to have 24 exclusive representation. 25 speech of the minority to the exclusion of the That quelled the Heritage Reporting Corporation Official - Subject to Final Review 62 1 2 majority. So these are all broad-sweep, 3 broad-scope principles where this Court has 4 applied Pickering. 5 JUSTICE ALITO: Well, if one employee 6 says I deserve a 5 percent raise, is that a 7 matter of public concern or private concern? 8 9 MR. FREDERICK: Well, it depends on whether it affects the morale of the workplace, 10 as Justice White's opinion in Connick said. 11 There may be a circumstance, you look at the 12 balancing, and you look at the content and the 13 context in which that speech arises. 14 So that, for instance, in Connick, 15 what the Court said, the only thing that was a 16 matter of public concern there was whether it 17 affected the morale of the workplace. 18 Court said on the basis of that, it could be a 19 matter of public concern, but an individual 20 worker's agitation ordinarily for pay would not 21 raise a matter of public concern. 22 be classic government workplace speech. 23 JUSTICE ALITO: And the That would All right. So if 24 that's a matter of private concern, if the 25 union demands a 5 percent wage increase for all Heritage Reporting Corporation Official - Subject to Final Review 63 1 of the employees it represents, can that be a 2 matter of public concern? 3 4 MR. FREDERICK: I don't think so because -­ 5 JUSTICE ALITO: It can't? No? 6 MR. FREDERICK: No, because what the 7 -- what is happening in a negotiation, of 8 course this is a closed universe, your 9 hypothetical posits the opening bid by the 10 11 union. And -- and it's important to keep in 12 mind the content and context of that speech. 13 All negotiations between workers and management 14 do not take place in a public forum. 15 JUSTICE ALITO: So what -- what if the 16 effect of the 5 percent wage increase across 17 the board would push a city to the brink and 18 perhaps over the brink into bankruptcy. 19 it then become a matter of public concern? 20 MR. FREDERICK: Would Well, I think that you 21 would look at that in terms of the context of 22 the particular scenario. 23 there are briefs on our side that make this 24 very clear -- that that particular 25 hypothetical, in fact, is an unfair smearing of I would say -- and Heritage Reporting Corporation Official - Subject to Final Review 64 1 the -- of the collective bargaining process. 2 But what I would also point out is 3 that if management says we cannot pay for this, 4 and, therefore, there is no agreement, there 5 are state-mandated procedures to determine 6 whether one side is bargaining in good faith or 7 not. 8 9 10 11 And if the union is taking a position that is not a good-faith position, it can be subject to a state penalty. JUSTICE BREYER: So I don't see how 12 you can say, if one person asks for more money, 13 that affects the budget. 14 railroads asks for more money, that affects the 15 rates that a public body, the Interstate 16 Commerce Commission, used to have to set. 17 If one person in the If one person in a public utility, an 18 electricity company, asks for money, that 19 affects the electricity rate. 20 So the line can't be, I would think, 21 whether or not you are asking for higher wages, 22 whether collectively or individually, because 23 they all affect the budget. 24 So then what is the line? I had 25 thought the line was wages, hours, working Heritage Reporting Corporation Official - Subject to Final Review 65 1 conditions is okay, and if it is not okay, then 2 that goes way beyond just public employees, 3 doesn't it? 4 MR. FREDERICK: Yes. And I would note 5 that Justice Powell even had no problem in 6 Abood with the wages/hours formulation and he 7 was the one who disagreed with the basic 8 formulation. 9 CHIEF JUSTICE ROBERTS: Well, 10 hypotheticals are asked to address a principle 11 that can then be expanded. 12 doesn't affect wages, do -- does 20 percent of 13 the work force affect wages -- I mean, 14 negotiate or demands with respect to wages 15 affect the public policy concerns that go into 16 how much of a budget, as to which there are 17 many competing demands, is allocated to 18 employees? 19 MR. FREDERICK: If one employee Your Honor, the 20 question -- I'll -- I'll concede you that there 21 are certain matters in collective bargaining 22 that might raise matters of public concern. 23 But what the Court's cases say is that, even if 24 there is a matter of public concern, the 25 government has the adequate power to restrict Heritage Reporting Corporation Official - Subject to Final Review 66 1 that speech if it can show there's 2 justification. 3 And Justice Scalia's opinion in 4 Lehnert provides the compelling interest by 5 saying that the state is mandated that the 6 union be the exclusive representative and must 7 conduct itself through a duty of fair 8 representation. 9 10 And that's where you get the compelling interest in agency fees. 11 JUSTICE ALITO: Well, the germaneness 12 rule came out of Abood itself and it was 13 fleshed out in Lehnert. 14 asking -- you're suggesting we should overrule 15 Abood in part? 16 MR. FREDERICK: So do you -- are you No. What I'm 17 suggesting is that if you were to go to this 18 line, you should consider revisiting Lehnert. 19 That's not a question of Abood's basic 20 correctness. 21 22 Abood has been foundational precedent -- 23 24 25 JUSTICE ALITO: And didn't Abood talk MR. FREDERICK: -- in a lot of -- Heritage Reporting Corporation Official - Subject to Final Review 67 1 different areas. 2 JUSTICE ALITO: 3 talk about germaneness? 4 MR. FREDERICK: Didn't Abood draw -­ I think Abood used the 5 word germaneness. 6 give content to that because what Abood simply 7 said was it is constitutional for this to 8 happen. 9 But what Lehnert did was to Now, I'd like to turn to the reliance 10 interest because, if the other side succeeds in 11 persuading a majority of you to overrule Abood, 12 it will affect thousands of contracts and, more 13 importantly, it is going to affect the work of 14 state legislatures, city councils, school 15 districts, who are going to have to go back to 16 the drawing board in deciding what are the 17 rules for negotiating and how that works. 18 And what that means is that the key 19 thing that has been bargained for in this 20 contract for agency fees is a -- a limitation 21 on striking. 22 collective bargaining agreements. 23 And that is true in many The fees are the tradeoff. Union 24 security is the tradeoff for no strikes. 25 so if you were to overrule Abood, you can raise Heritage Reporting Corporation And Official - Subject to Final Review 68 1 an untold specter of labor unrest throughout 2 the country. 3 Thank you. 4 CHIEF JUSTICE ROBERTS: 5 6 7 8 9 Thank you, counsel. Two minutes remaining, Mr. Messenger. REBUTTAL ARGUMENT OF WILLIAM L. MESSENGER ON BEHALF OF THE PETITIONERS MR. MESSENGER: Mr. Chief Justice: 10 Just to pick up on the last point made, the 11 proposition that agency fees are the costs 12 employees have to pay to prevent unions from 13 striking, I submit is not only extremely 14 attenuated but also would make agency fees 15 effectively a form of protection money, the 16 idea that the government needs to force its 17 employees to subsidize unions or otherwise the 18 unions will disrupt the government, and I 19 submit that's not an interest that this Court 20 can accept as a compelling one for infringing 21 on individuals' First Amendment rights. 22 I would also like to make a brief 23 point about the grievance process. And we've 24 talked a lot about collective bargaining today. 25 But grievance processing is equally an Heritage Reporting Corporation Official - Subject to Final Review 69 1 expressive activity, and in the aggregate can't 2 have an effect upon the public fisc. 3 Now, in terms of expressive activity, 4 a grievance is, by definition, the union is 5 trying to influence what the government is -­ 6 wants to do and, if it's a grievance, it is 7 something the government is resistant to 8 actually doing. 9 10 And advocacy to enforce a policy is tied into advocacy to adopt that process. 11 JUSTICE SOTOMAYOR: You're basically 12 arguing do away with unions, because you are 13 really taking, in essence, and saying every 14 single employee decision is really a public 15 policy decision. 16 I have an individual person I want to 17 fire or discipline. 18 public policy question. 19 You just said it's a MR. MESSENGER: No, where I was going 20 with that, Your Honor, is that grievance as a 21 whole is a public -- a matter of public 22 concern. 23 JUSTICE SOTOMAYOR: 24 don't deal with one issue. 25 a different issue. But grievances Every grievance has Some people are disciplined Heritage Reporting Corporation Official - Subject to Final Review 70 1 for being late. 2 for a workplace disruption. 3 4 5 6 7 Some people are disciplined MR. MESSENGER: Some for -­ Yes, Your Honor, but nonmembers -­ JUSTICE SOTOMAYOR: -- violating a dozen other workplace rules. MR. MESSENGER: But under the statute 8 nonmembers are charged for contract 9 administration an a whole. They're charged for 10 an entire year's worth of AFSCME grievance 11 processing, some of which are very significant, 12 like the grievance AFSCME recently filed to 13 compel the state to expend 75 million dollars 14 to pay for a 2 percent wage increase. 15 went to the Illinois Supreme Court. 16 other grievances are more minor matters, as you 17 mentioned, but as a whole, in the aggregate, 18 they affect matters of public concern. 19 JUSTICE SOTOMAYOR: 20 MR. MESSENGER: 21 JUSTICE SOTOMAYOR: That Maybe some As Justice -­ That is what -­ -- Breyer said, 22 every single decision affects the public fisc. 23 Every time you lose something, you -- the 24 public fisc is affected. 25 You are talking -­ Heritage Reporting Corporation Official - Subject to Final Review 71 1 2 CHIEF JUSTICE ROBERTS: Care to comment? 3 MR. MESSENGER: Again, to go back, I 4 think it's the scale that makes the 5 distinction, Your Honor. 6 7 8 9 CHIEF JUSTICE ROBERTS: counsel. Thank you, The case is submitted. (Whereupon, at 11:08 a.m., the case was submitted.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 72 Official - Subject to Final Review � 1 10 [2] 19:2 31:20 10:06 [2] 1:16 4:2 11:08 [1] 71:8 16-1466 [1] 4:4 184 [1] 20:23 1945 [1] 28:7 1970 [1] 28:8 2 2 70:14 20 [3] 31:20 37:13 65:12 2018 [1] 1:12 22 [1] 3:9 23 [1] 19:17 26 [1] 1:12 [4] 41:7,8,17 3 31 [4] 1:8 2:16 3:16 51:17 35 [1] 3:12 action [4] 5:23 6:1 27:23 50:12 actions [2] 34:23 35:5 activities [4] 5:1 7:1 37:7,25 activity [5] 8:13 15:18,24 69:1,3 actual [1] 23:19 actually [3] 29:9 44:14 69:8 add [1] 10:8 address [2] 14:7 65:10 addressed [6] 50:15,20 52:8 55: 10 61:4,6 addressing [1] 50:17 adequate [1] 65:25 administer [1] 58:8 administration [1] 70:9 administrations [1] 34:8 adopt [2] 56:15 69:10 advising [1] 38:11 advocacy [9] 7:7 9:9 10:23 15:1,1 35:8 59:16 69:9,10 AMERICAN [2] 1:6 4:5 amicus [4] 2:8 3:8 22:17 28:2 among [2] 15:15 46:10 amount [4] 26:21 60:6,8,9 analyzed [1] 41:6 anecdotal [1] 20:21 Another [2] 5:2 8:11 answer [8] 21:4,6 27:7 34:17,19 avoid [1] 46:4 aware [1] 50:14 away [2] 49:18 69:12 awful [1] 23:17 B back [8] 12:24 23:18 26:14 48:7 49:5 60:22 67:15 71:3 backed [1] 42:3 background [1] 52:3 balance [2] 44:8 61:22 balancing [2] 61:17 62:12 bandied [1] 23:18 APPEARANCES [1] 2:1 bankruptcy [1] 63:18 [1] applicable 36:9 [8] applied [8] 6:1 13:4 14:13 42:2 61: bar 5:2,9,13 7:11 8:15 45:1,6,9 [2] 15:10 51:8 bargain 16,17,22 62:4 [3] 58:22,24 67:19 bargained [1] applies 36:13 [3] 21:12,18 22:6 bargained-for apply [7] 4:13 6:2,21 12:19,24 28: [44] 9:8,18,24 10:4 15: bargaining 16 35:3 41:3,4 42:17 anybody [1] 41:2 anyways [1] 22:8 appear [1] 40:24 8,17,17 17:1 22:2 23:4 24:8,13 26: 17 27:24 29:7,12,20 30:2,3,12 31: 4 13,22 32:6 37:4 38:14 47:8 52:23 53:5,9,16 54:24 55:20 57:17 58:5 4 [1] 3:4 59:12 60:18,18 61:4,7 64:1,6 65: 40 [1] 51:21 21 67:22 68:24 5 bargains [1] 31:18 [3] 5 62:6,25 63:16 basic [4] 22:21 49:19 65:7 66:19 50 [2] 12:20 32:23 basically [5] 12:18 35:3 55:21 56: 51 [1] 3:16 22 69:11 [3] 23:6 38:16 62:18 basis 6 [1] 46:5 bear 23:2,8 24:15 27:4 29:5,6,18 33:19 12 68 [1] 3:19 [2] 37:1 43:20 46:1 49:2 51:23 66:10 argument [18] 1:15 3:2,5,10,13,17 Beck 28:2 37:18 [5] 18:1 48:20 49:3,20 63: 7 become 67:20 68:11,14 4:4,8 22:16 29:23 35:12 37:21 49: 19 7:00 [1] 55:13 aggregate [2] 69:1 70:17 8 51:16 56:8 57:14 60:25 68:7 becomes [2] 57:9,12 70s [1] 13:10 agitation [1] 62:20 arguments [1] 51:21 beg [1] 23:15 75 [1] 70:13 [2] [1] ago 28:3 51:22 arises 62:13 begin [1] 12:25 [6] 27:2 30:15 39:10 44:22 [1] 20:1 agree Arizona 8 beginning [1] 51:20 45:11 55:21 around [3] 36:13 50:17 58:7 8:30 [1] 55:13 behalf [14] 2:4,8,12,15 3:4,7,12,15, [2] [1] agreement 59:12 64:4 articulated 18:3 80 [3] 24:17,20 37:11 19 4:9 22:17 35:14 51:17 68:8 agreements [5] 24:13 26:17 27: aside [1] 39:25 behavioral [1] 48:24 9 24 31:13 67:22 asks [4] 17:7 64:12,14,18 behind [1] 39:16 agrees [1] 31:6 aspects [1] 28:22 94 [1] 24:12 belief [1] 10:25 AL [1] 1:8 assess [1] 41:9 A believe [3] 25:3 27:21 34:10 ALITO [33] 11:12,22 12:4 27:18 38: assign [1] 52:18 benefit [2] 9:5 53:21 [1] a.m [3] 1:16 4:2 71:8 21 39:8,17,21,25 40:3,13,14 41:10, assignments 57:21 benefits [3] 23:11 30:1 61:1 ability [2] 33:11 46:8 assistant [4] 40:16,17,24 42:17 18 42:10,16 43:23 44:1,7 52:20 [2] [3] [7] able 9:17 46:12 52:5 association 4:18 5:2,9,10,16 7: best 41:1 60:3 53:1,3,10 56:5,14 57:13 62:5,23 better [1] 32:13 Abood [26] 4:12,22 8:6 13:10 14:9, 63:5,15 66:11,23 67:2 11 45:9 between [10] 32:3,6 38:22 42:11, 15,20,21 19:15,16 26:22 37:17 43: allegations [1] 23:23 associations [3] 5:13 8:15 45:1 20 44:21 47:18 52:10 55:13 63:13 [1] [1] 18 48:6,14 51:22 65:6 66:12,15, allocated 65:17 assumes 10:6 beyond [3] 10:9 50:23 65:2 21,23 67:2,4,6,11,25 allow [5] 15:16 46:4 47:25 50:9 53: assuming [1] 10:7 bid [1] 63:9 Abood's [3] 4:15,20 66:19 assumption [1] 22:4 20 big [1] 44:20 [1] [2] above [1] 10:9 allowed 33:10 assumptions 23:17 38:16 blink [1] 47:3 above-entitled [1] 1:14 allows [3] 15:8,12 47:24 attempt [1] 4:19 board [4] 17:3 20:4 63:17 67:16 [1] accept 68:20 almost [2] 26:3,18 attention [1] 13:23 body [3] 16:20 59:23 64:15 [4] [1] acceptable [1] 11:10 already 10:9 33:20 34:7 35:21 attenuated 68:14 [1] according [2] 24:11,23 alternative [1] 8:17 attorney [5] 40:16,17,23,24 42:18 bona 42:3 [1] 46:22 bonded [1] account 10:12 alternatives [1] 8:16 attract [2] 49:9 52:5 boss [1] 39:15 accounts [1] 40:12 although [2] 10:18 30:15 attractive [1] 49:11 both [3] 18:9,13 23:18 achieve [1] 60:2 amazing [1] 32:19 attracts [1] 60:3 Brandeis [1] 12:22 [3] [22] [3] across 17:3 20:4 63:16 Amendment 4:13 10:24 11:9 auditorium 17:9,18,22 [3] Act [9] 7:1 12:1 13:12,12 14:22 36: 14:14 15:2,14,24 16:4,10,19 17: authority [4] 10:8 35:22 38:25 54: break 38:4,18 41:23 [1] 38:17 breaks 11 43:4 52:1 61:15 13 19:17 20:3,6 29:10 41:23 43: 22 [19] 12:15 14:8 20:24 21: BREYER [3] acting [2] 36:4 39:20 available 11:4 38:3 59:18 17 55:6 56:23,25 61:11 68:21 advocating [1] 46:18 affect [12] 17:2,3 57:23 59:6 60:9 applying [2] 14:19,20 appropriate [3] 26:12 57:24 60:2 64:23 65:12,13,15 67:12,13 70:18 approved [1] 6:12 affected [4] 19:7,18 62:17 70:24 arbitration [1] 28:8 affects [7] 33:21 53:23 62:9 64:13, Archie [1] 28:5 area [1] 50:13 14,19 70:22 affiliation [1] 42:7 areas [1] 67:1 affirmatively [1] 43:6 arguably [1] 17:16 AFSCME [6] 2:16 3:16 17:1 51:17 argue [2] 35:25 39:13 70:10,12 argued [1] 28:2 agency [22] 4:24 5:5 8:1,24 22:23 arguing [4] 34:1 36:24 39:11 69: Heritage Reporting Corporation Sheet 1 10 - BREYER 73 Official - Subject to Final Review � 4 27:25 28:4,11,18,25 34:16 37:4 47:11 56:3 58:2,12,15,19 64:11 70:21 brief [7] 13:24 20:25 28:3 29:5 56: 6,7 68:22 briefs [1] 63:23 bring [1] 49:5 brink [2] 63:17,18 broad [1] 35:22 broad-scope [1] 62:3 broad-sweep [1] 62:2 broader [2] 40:8 49:11 broadly [1] 48:18 brought [1] 28:23 budget [11] 58:23 59:7,10,17 60:9, 17,20,22 64:13,23 65:16 Bureau [2] 24:11,24 business [1] 17:10 buy-in [1] 57:25 C Circuit [2] 27:19,20 circulating [1] 40:18 circumstance [1] 62:11 circumstances [1] 43:13 citizen [2] 40:9 56:1 citizens [1] 35:20 city [2] 63:17 67:14 classic [1] 62:22 clause [2] 21:10 51:6 clauses [2] 20:17,21 clear [2] 19:22 63:24 cleaved [1] 52:13 clients [1] 13:14 closed [1] 63:8 cohesion [1] 46:9 coin [1] 42:15 coincide [1] 47:20 collaboration [1] 46:9 colleague [1] 61:14 collective [31] 6:18 15:8,16,17,21 16:20 24:13 26:16 27:24 29:7,12, 20 30:2,3 31:13,21 32:5 37:3 38: 14 53:5,15 54:23 55:20 57:17 59: 12 61:4,6 64:1 65:21 67:22 68:24 11 66:12 collectively [2] 31:18 64:22 cannot [3] 15:19 58:22 64:3 Columbia [1] 18:23 Care [1] 71:1 come [10] 16:13,13 17:8 35:21 44: carried [1] 45:18 9 45:7 47:7 52:2 53:14 60:1 Carriers [1] 36:10 comes [4] 27:23 31:13 35:6 54:5 cars [1] 20:2 coming [2] 16:20 39:12 carved [1] 58:20 command [1] 33:18 Case [30] 4:4 5:4,23 6:2 13:10 18: comment [1] 71:2 18 26:11 27:10 29:11,14 36:11,23, Commerce [1] 64:16 23,24,25 37:18,18 38:15 40:4,22 Commission [1] 64:16 50:4 53:12,23 54:5,13,18,20 61: committed [1] 12:12 10 71:7,8 company [1] 64:18 cases [18] 5:10,22 12:9,20,23,25 comparable [1] 6:19 13:3,12 14:10,11 34:15 35:17 38: compel [5] 9:7 29:20 39:1 43:8 70: 7 42:7 44:24 45:14 47:21 65:23 13 categories [1] 38:4 compelled [13] 5:5 15:19 36:17, CBA [1] 38:8 17 42:21 43:14,15 44:19,21,21 45: Ceballos [1] 44:12 1,2,4 certain [4] 44:9 55:4 57:2 65:21 compelling [15] 5:14,18 6:5,14,19, cetera [1] 38:12 22 7:17,21 8:1 23:3 35:7 44:3 66: chain [1] 33:17 4,10 68:20 challenged [1] 5:24 competing [1] 65:17 chance [1] 10:17 complementary [1] 46:2 change [3] 17:7 37:15 44:17 compromise [4] 13:21 14:6 47:12 changes [1] 22:9 58:17 changing [1] 28:12 compromises [1] 60:2 characterization [2] 57:14,16 compulsion [2] 42:11,14 chargeability [1] 48:1 compulsory [6] 4:14 19:14 20:9, chargeable [6] 15:13 38:5,13 47: 13 21:23 58:5 18 54:7,10 concede [1] 65:20 charged [2] 70:8,9 concern [25] 17:17 30:5,10 31:19, charges [1] 38:8 23 32:23 41:12,16,18,19 57:19 61: charging [2] 15:8,16 3,5 62:7,7,16,19,21,24 63:2,19 65: Chicago [1] 2:12 22,24 69:22 70:18 CHIEF [20] 4:3,10 22:11,13,19 35: concerns [2] 29:10 65:15 9,15 49:7 51:1,2,13,18 59:1,5,15 concluding [1] 23:6 65:9 68:4,9 71:1,6 concrete [1] 40:15 choice [1] 49:25 condition [2] 37:1 42:2 choices [1] 56:19 conditions [6] 29:24 32:16 35:22 chosen [2] 8:18 32:12 58:4 61:2 65:1 California [4] 20:24,25 21:8,25 called [1] 13:23 came [7] 1:14 14:10,11,18 17:9 26: conduct [1] 66:7 confer [1] 10:10 confidence [1] 40:19 confrontational [1] 49:3 Connick [9] 40:16 50:4,8 56:18 57: 10 58:16,16 62:10,14 conscience [2] 43:10 55:25 consider [1] 66:18 consideration [1] 19:23 considerations [1] 55:11 considered [2] 50:20 51:24 constantly [1] 36:20 Constitution [2] 11:13 56:9 constitutional [6] 11:15 19:25 51: 25 57:9 61:23 67:7 constitutionally [2] 12:5 15:13 constrain [1] 51:25 contagious [1] 49:21 content [3] 62:12 63:12 67:6 context [6] 30:12 32:6 45:15 62: 13 63:12,21 continued [1] 26:22 contract [15] 10:1,3 19:4 21:9,13, 17 22:4,6 27:13 37:7 46:16 51:7 57:18 67:20 70:8 contracts [11] 19:1,1 20:11,12,16, 20,23 22:7 26:18 48:9 67:12 contrary [2] 33:17 42:8 contribute [1] 46:6 controlled [1] 25:21 controlling [2] 34:22 35:4 core [4] 15:18 29:4 33:10 57:3 corporate [1] 25:8 correct [6] 16:4,15 45:12,13 58:10, 12 correctness [1] 66:20 corresponding [1] 35:6 corrosive [1] 46:8 corruption [1] 33:18 cost [7] 29:6,12 30:6,8,13 31:15 46:5 costs [3] 9:24 10:8 68:11 couldn't [2] 20:18 39:13 COUNCIL [4] 1:8 2:16 3:16 51:17 councils [1] 67:14 counsel [5] 22:14 44:18 51:14 68: 5 71:7 counterparty [1] 46:14 country [3] 36:14 50:17 68:2 COUNTY [2] 1:7 4:6 course [11] 7:5 14:25 15:15 21:2, 11 26:13 49:8 50:14 57:11 59:21 63:8 COURT [39] 1:1,15 4:11 7:24 8:6 11:20 14:23 16:24 20:3 22:20 27: 1,14 28:20 35:16 36:6 40:17 41: 10 42:1,12 48:13 50:3,14,15 51: 19,21,22 52:8,13 54:3 56:17 61: 11,15,17,21 62:3,15,18 68:19 70: 15 Court's [4] 28:15 35:17 41:23 65: 23 courts [1] 5:16 cover [1] 19:2 Cox [2] 28:5 37:5 cracks [1] 55:22 cultivate [1] 46:8 culture [1] 52:3 curiae [3] 2:8 3:8 22:17 cut [2] 6:23 28:20 D D.C 2:7,15 27:20 data [2] 24:11,24 DAVID [6] 2:11,15 3:11,14 35:12 [4] 1:11 51:16 day [4] 38:10,10 45:7 46:12 day-to-day [1] 37:5 deal [1] 69:24 dealing [2] 14:25 45:21 debatable [1] 28:22 decide [3] 15:13 38:15 49:23 decided [3] 6:17 15:9 61:23 decides [1] 59:13 deciding [1] 67:16 decision [4] 4:21 69:14,15 70:22 decisions [2] 6:7 27:1 decisis [6] 4:22 14:3 19:20,21 22: 24 26:15 declared [2] 18:24 21:15 deemed [2] 52:10,11 deference [2] 35:25 50:5 deferential [1] 36:8 definition [1] 69:4 degree [1] 11:7 delivery [2] 18:14 30:14 demand [4] 9:18 11:13 17:12,14 demands [3] 62:25 65:14,17 democratic [1] 52:1 denied [2] 47:6,10 density [1] 48:21 deny [1] 47:3 Department [1] 2:7 departure [1] 14:15 depends [2] 36:1 62:8 deprive [2] 6:9,10 deprived [1] 49:2 deserve [1] 62:6 destruction [1] 50:10 determine [1] 64:5 dictate [1] 49:19 Diego [1] 36:12 difference [1] 44:20 differences [1] 38:22 different [13] 5:1,12 7:9 21:14 23: 15 31:16 40:11 42:23 50:21,22 60: 16 67:1 69:25 differently [2] 44:9 60:16 difficulties [1] 48:12 dignity [1] 43:9 diminished [3] 9:16 11:5,8 disagree [3] 31:8 33:24 45:3 disagreed [1] 65:7 discharge [1] 52:6 discipline [1] 69:17 disciplined [4] 16:8 44:15 69:25 70:1 discretion [2] 10:4 58:21 Heritage Reporting Corporation Sheet 2 BREYER - discretion 74 discussed [1] 12:9 dismiss [5] 26:10,12,14 38:2 48: Official - Subject to Final Review � F 35:19 36:5 37:9 40:9 42:5 50:9 employer's [1] 36:1 17 employers [2] 21:14 35:4 disparage [1] 43:16 employment [12] 6:6 16:14 17:25 29:24 32:16 37:2,6,9 40:6 42:3 57: disposition [1] 44:13 9 61:2 disputes [2] 30:24 31:11 disrupt [1] 68:18 employment-related [2] 16:3,9 disruption [2] 27:3 70:2 end [3] 46:12 54:17,19 dissent [2] 14:12 15:6 endemic [1] 49:20 distinction [3] 13:16 42:10 71:5 enforce [2] 27:14 69:9 distinguish [1] 14:4 engage [1] 59:16 distinguishable [1] 5:11 enormous [1] 26:21 District [6] 18:22 40:16,17,23,24 enough [1] 46:14 42:18 ensuring [2] 8:22 45:17 districts [1] 67:15 entire [1] 70:10 doctrine [4] 14:20 19:20,21 27:12 entirely [1] 18:6 doing [6] 8:11 12:18 19:10 34:24 entitled [2] 16:3,10 38:10 69:8 entitlement [1] 16:18 dollars [2] 17:2 70:13 equal [2] 9:11,19 done [1] 19:8 equally [1] 68:25 down [8] 38:17,18 41:6 48:21,21, especially [1] 38:7 22 60:5,10 ESQ [2] 2:3,15 dozen [1] 70:6 essence [1] 69:13 drains [1] 9:10 essential [1] 21:8 dramatic [1] 6:15 essentially [2] 30:22 59:9 draw [4] 42:11 47:17 52:9 67:2 established [1] 31:9 drawing [1] 67:16 ET [2] 1:8 38:12 drawn [4] 42:20 44:20 47:16 48:3 even [14] 14:3,12,21 21:11 22:2,5 24:14 26:23 33:9 50:23 51:7 58: drew [2] 43:5 47:14 11 65:5,23 due [2] 20:14 47:5 dues [3] 10:20 37:12 49:24 events [1] 50:9 duties [7] 15:12 36:23,25 39:6,9, everybody [2] 8:23 40:25 20 40:1 everyone [1] 45:25 duty [8] 9:23 10:5 11:20 12:2 15: evidentiary [1] 38:16 10 45:24 51:7 66:7 evolved [1] 56:25 dynamic [1] 53:20 exact [2] 33:3,4 exacting [1] 14:13 E exactly [5] 25:15 44:3,5 53:2 54:4 economics [2] 48:24 49:19 example [8] 6:25 11:15,25 20:1 21: effect [3] 40:8 63:16 69:2 25 23:7 42:22 50:4 effective [1] 49:10 except [2] 20:13 21:17 effectively [1] 68:15 excision [2] 20:13 21:10 effects [3] 23:19 50:21,24 exclusion [1] 61:25 efficient [1] 49:10 exclusive [7] 8:25 9:4 10:7 23:4 either [4] 10:20 23:8 59:10,13 52:15 61:24 66:6 elect [1] 33:2 exercising [1] 11:8 electricity [2] 64:18,19 existence [1] 60:8 Ellis [1] 37:18 expanded [1] 65:11 Elrod [2] 14:12,12 expend [1] 70:13 elsewhere [1] 42:13 expense [1] 54:7 employee [19] 15:22 16:7 18:2 30: expenses [4] 38:5,13,18 47:19 1 31:25 32:3 33:17,20 35:4 36:8 expensive [1] 10:2 37:8 41:15 47:8 49:22 56:8 57:25 expire [1] 22:7 62:5 65:11 69:14 explain [1] 56:1 employee's [2] 33:11 61:19 explained [3] 8:6 14:23 56:24 employee/employer [1] 30:24 explains [1] 56:18 EMPLOYEES [36] 1:7 4:6 7:3 10: exploits [1] 40:6 1 16:13,20 17:3,8,9,18 24:12 31: expresses [1] 36:19 19 32:11,12,13,23,25 34:23 35:7 expression [1] 57:2 36:5,13 38:11 39:1 41:24 45:23 expressive [3] 57:5 69:1,3 46:5 49:12 52:7 56:10 60:7 61:7 expressly [1] 12:2 63:1 65:2,18 68:12,17 extent [3] 22:5 50:10 59:17 employees' [1] 35:23 extraordinary [1] 9:6 employer [11] 6:5,14 9:19 32:1,4 extremely [1] 68:13 foundational [2] 48:24 66:21 founding [2] 57:3,6 faces [1] 9:19 four [1] 50:16 fact [6] 6:22 20:3 24:10 42:1 61:14 four-year [1] 26:18 63:25 Fourth [2] 20:3,6 factored [1] 27:1 framework [7] 12:19,23 31:9,10 facts [1] 17:21 36:7 61:4,7 factual [1] 23:23 frameworks [2] 12:25 13:4 fail [1] 55:24 FRANCISCO [40] 2:6 3:6 22:15,16, failed [1] 4:13 19 23:12,25 24:3,23 25:3,10,12,19, failure [1] 4:16 22 26:1,4,9 27:6,15 28:1,10,17,24 fair [8] 6:10 12:2 34:16 52:17 55:1 29:3,17 30:11,25 31:3,7,24 32:14, 57:14,16 66:7 faith [1] 64:6 far [2] 34:15 53:11 favor [1] 58:13 February [1] 1:12 federal [9] 7:21 11:20 23:7,20 24: 20 33:5,14,23 34:3,9,13,19 48:6 Francisco's [1] 60:25 FRANKLIN [33] 2:11 3:11 35:11, 12,15 36:21 37:16,23 39:4,15,19, 23 40:2,4 41:3,13,20 43:12,25 44: 5,8,22 45:5,13 46:25 47:5,13 48:4, 6,15,19 25:1,4 15 49:13 50:19 51:1,3 FEDERATION [2] 1:6 4:5 frankly [1] 38:19 fee [7] 4:14 6:10 8:24 27:4 29:6 43: FREDERICK [38] 2:15 3:14 51:15, 14 52:18 16,18 52:24 53:10,25 54:6,10,15, fees [29] 4:25 5:1,5,9,10,17,24 7: 19 55:8,15 56:5,13,16 57:15 58: 10 8:1,11 10:17 22:23 23:2,8 24: 10,14,18 59:3,8,19,25 60:11,15,24 15 29:18 37:1,11 43:20 46:1 49:2, 61:10 62:8 63:3,6,20 65:4,19 66: 23 51:23 52:10 66:10 67:20,23 68: 16,25 67:4 11,14 free [4] 9:2 45:9 56:10 57:4 few [5] 18:21 28:3,3 45:20 48:7 free-rider [1] 49:20 fide [1] 42:4 freer [2] 35:18,21 field [1] 38:9 Fried [1] 13:24 filed [2] 56:7 70:12 friend [1] 42:11 financial [1] 48:19 friends [1] 35:24 financing [2] 28:12,21 full [1] 24:5 find [4] 20:18 24:12 38:6 54:2 function [2] 39:5,9 fire [2] 6:8 69:17 fundamentally [1] 35:1 fired [2] 33:21 40:18 further [2] 23:3 29:14 firing [1] 6:15 G firm [1] 48:2 first [35] 4:4,13 5:8 9:22 10:23 11: gains [1] 49:4 9 14:9,14 15:2,14,24 16:4,10,18 Gant [1] 20:1 17:13 19:13,16 22:22 24:4 29:10 Garcetti [6] 36:12,15,23 39:7 40:4 31:2 37:23 41:23 43:17 45:21 46: 44:11 2,4 49:14,16 55:6 56:23,25 60:17 GEN [2] 2:6 3:6 61:11 68:21 General [51] 2:6,11 20:12,20,22 fisc [6] 18:13 33:22 57:23 69:2 70: 22:15,16,19 23:12,16,25 24:3,23 25:3,8,10,12,19,22 26:1,4,9 27:6, 22,24 15 28:1,10,17,24 29:3,17,22 30:11, fiscal [1] 47:9 25 31:3,7,24 32:14,20 33:5,14,23 fit [2] 52:2 60:23 34:3,6,9,13,19 35:10,13 37:5 48:6 fits [1] 60:20 60:25 fleshed [1] 66:13 generally [8] 6:12 16:6,16 23:9 24: flip [1] 19:20 16 25:4 26:17 36:9 flipped [1] 34:7 germaneness [4] 47:23 66:11 67: flush [1] 49:16 3,5 focus [2] 22:21 29:12 gets [4] 17:23 49:18 55:22 57:21 follow-up [1] 27:9 GINSBURG [6] 4:23 9:10 10:11, force [3] 60:7 65:13 68:16 14 11:1 27:6 forcing [3] 7:6,9,12 give [3] 40:15 42:22 67:6 Foremost [1] 21:23 given [4] 8:21 23:11 42:23 50:24 form [1] 68:15 Glickman [1] 45:14 formal [1] 31:21 good-faith [1] 64:9 formulation [2] 65:6,8 got [5] 17:11 38:19 40:10 41:14 60: forth [4] 13:21 23:18 58:9 61:2 10 forum [3] 5:19 7:11 63:14 government [51] 5:14 6:5,8,13 7: found [1] 4:20 Heritage Reporting Corporation Sheet 3 discussed - government 75 Official - Subject to Final Review � 3,13,14,21 8:3,22 9:7 10:24 14:25 15:9,12 18:12 23:7,8 24:7,15,19 25:2,4 29:1 30:14,20,22 31:5,16 32:8,9,21 33:9,19 36:4,16 46:21 48:1 52:1 57:1,4,11 60:6 61:12,18 62:22 65:25 68:16,18 69:5,7 government's [10] 5:17 6:11,20, 24 8:7 13:13 22:22 23:21 30:8 34: 22 governmental [1] 4:15 governments [1] 52:4 Governor [1] 59:11 grant [1] 44:10 greater [2] 16:14 46:18 greatest [1] 28:6 grievance [15] 28:8 29:8,9 37:6,14 38:11 57:8 68:23,25 69:4,6,20,24 70:10,12 grievances [5] 11:17 37:15,25 69: 23 70:16 group [5] 7:7 17:23 36:6 49:11 55: 23 groups [1] 9:9 guess [1] 52:25 H hand [3] 32:25 35:18,21 handle [1] 11:16 happen [3] 27:17 38:6 67:8 happened [1] 44:14 happening [2] 47:4 63:7 happens [5] 27:11 30:5 59:9 60: 18,19 happy [3] 36:21 42:6 48:15 hard [1] 58:7 harder [1] 24:8 Harlan's [1] 55:9 harm [1] 50:6 harmful [1] 50:21 Harris [6] 4:16 5:11 14:23 16:25 26:13,20 Hatch [3] 6:25 36:11 61:15 head [1] 26:5 health [1] 18:11 hear [1] 4:3 heard [1] 28:5 heart [1] 30:3 heightened [4] 4:13 15:2 35:1,3 held [2] 27:22 40:17 higher [5] 17:11,24 32:24 46:21 64:21 highly [1] 37:12 hinge [1] 5:22 hinges [1] 61:11 history [4] 12:11 42:19 52:3 58:6 holidays [1] 57:21 Holmes [1] 12:22 Honor [36] 5:7 7:23 9:4,21 10:22 hours [2] 58:3 64:25 However [1] 37:1 Hudson [1] 38:4 huge [1] 33:22 human [1] 49:19 hundred [1] 58:6 hundreds [1] 17:2 hypothetical [4] 17:16 53:11 63:9, 25 hypotheticals [1] 65:10 I idea [5] 12:12 29:18,23 51:23 68: 16 idealogical [1] 10:19 identical [2] 13:11,11 identified [2] 27:19,20 ideological [1] 52:11 illegal [2] 19:25 27:13 Illinois [8] 2:11,12 11:25 12:1 35: 13 38:25 39:13 70:15 immaterial [1] 10:22 impacts [1] 59:17 implementation [1] 55:5 implicate [1] 30:16 implications [1] 47:10 implicit [1] 42:9 implied [1] 11:20 important [5] 18:12 19:22 29:22 43:19 63:11 importantly [2] 33:7 67:13 imposed [1] 11:18 imposing [1] 45:24 impulses [1] 52:1 includes [1] 35:22 including [1] 24:16 income [1] 6:10 incompatible [1] 35:2 inconsistent [3] 14:9,11,16 increase [4] 50:1 62:25 63:16 70: 14 increasing [2] 46:22,22 incredibly [1] 10:5 indebtedness [1] 46:22 independent [2] 46:11,13 indicate [1] 49:15 individual [7] 10:22 27:4 31:11,25 61:7 62:19 69:16 individually [1] 64:22 individuals [4] 7:6 11:8 15:19 19: 6 individuals' [3] 10:25 20:6 68:21 industries [2] 14:5 25:18 industry [3] 25:17,17 28:14 inequitable [1] 21:19 influence [6] 4:15 53:23 54:4,14, 16 69:5 infringe [1] 43:9 11:19 12:7,14 16:1,5 20:19 21:3,7 infringing [1] 68:20 23:13 24:4 26:6 27:16 29:3 30:11 initial [1] 49:16 31:8,25 33:24 34:9,13 37:17 39: inquiry [1] 34:21 20 43:12 44:6 50:13 54:20 59:8 insist [1] 43:3 60:12 65:19 69:20 70:3 71:5 insofar [1] 57:16 hour [1] 37:14 instance [2] 20:8 62:14 instances [3] 5:8 44:10 47:24 instrument [1] 28:6 insurance [1] 18:11 intangibly [1] 48:25 interchange [1] 53:20 interest [33] 5:15,18 6:6,14,16,19, K KAGAN [19] 18:16 19:12,19 20:15 21:11 29:16,22 30:18 31:1,4,17 32:10,15,21 48:4,16 50:19 58:1 60:24 [1] 24 7:17,22 8:3,5,7 22:22 23:3 31: Kagan's 34:18 [3] 9:15 58:8 63:11 keep 12 34:22 35:2,6 40:9 42:4 45:19, Keller [2] 37:18 45:14 21,23 46:12,23 47:1,1 51:11 61: KENNEDY [23] 10:13 12:8 13:22 18 66:4,10 67:10 68:19 26:7 36:15,22 37:10,20 46:17 47: [1] interested 30:7 interests [18] 5:12 6:21 7:5,13 8:1, 2,6 53:22 54:1,7,9,11,17 55:3,8,12 22 18:17,19 22:10 26:16 30:21 43: 58:17 60:4,13 key [1] 67:18 17 45:17 46:2,3 51:4 55:1,7 kicks [1] 51:8 interferes [1] 33:11 kind [2] 46:7 53:20 Interstate [1] 64:15 kinds [3] 8:16 13:3 48:19 [1] invalidate 27:4 known [1] 21:15 invalidated [1] 19:1 Knox [2] 4:17 26:20 investigate [1] 9:17 Kraemer [1] 27:13 [1] involve 37:7 involved [6] 13:14,14 20:2 33:4 36:15 42:24 irrespective [1] 7:18 irresponsible [1] 38:19 isn't [8] 6:18 7:15 8:25 14:16 18:6 19:14 54:17 60:13 issue [16] 16:9,15 17:25 22:6 23:1 26:10 27:20 29:4 33:7 43:17 48: 10 50:18 57:9,10 69:24,25 issues [7] 6:17 16:3 17:1 22:22 51: 7,24 57:17 itself [5] 9:5 29:6 34:21 66:7,12 J JANUS [3] 1:3 4:5 6:2 job [1] 33:12 jobs [2] 23:22 34:24 judgments [1] 50:6 judicial [1] 50:5 Justice [171] 2:7 4:3,10,23 6:3 7:8, 20 8:10 9:1,10 10:11,13,14 11:1, 12,22 12:4,8,15 13:9 14:8,13 15: 20 16:2,7,12,17 17:6,20 18:7,15, 16 19:12,19 20:15,24 21:4,11 22: 11,13,19 23:10,14 24:1,21,25 25:7, 11,16,20,24 26:2,7 27:6,18,25 28: 4,11,18,25 29:16,22 30:18 31:1,4, 17 32:10,15,21 33:13,15,25 34:5, 11,16,18 35:9,16 36:15,22 37:4,10, 20 38:21 39:8,17,21,25 40:3,12,14 41:10,18 42:10,16 43:23 44:1,7, 18,23,25 45:6 46:17 47:2,6,11,14, 20 48:4,16 49:7 50:19 51:1,2,13, 19 52:17,20 53:1,3,10,22 54:1,7,9, 11,17 55:3,8,9,12 56:3,5,14,17,24 57:10,13 58:1,2,12,15,18 59:1,5, 15 60:4,13,24 62:5,10,23 63:5,15 64:11 65:5,9 66:3,11,23 67:2 68:4, 9 69:11,23 70:5,19,19,21 71:1,6 Justices [1] 13:22 justification [4] 19:9 29:18 36:17 66:2 justified [3] 5:12,14,17 justify [2] 4:19 7:6 L labor [16] 7:14,15,25 8:3,5 12:1 13: 12,12 14:22 24:11,24 28:4,7,23 55:2 68:1 lack [1] 40:19 largely [1] 27:18 last [2] 55:13 68:10 late [1] 70:1 Lathrop [1] 55:10 Laughter [3] 39:18 55:14 59:24 law [14] 5:5,15 11:18,20,23,24,25 12:20 14:20 36:3 41:24 51:5,6,8 lawyers [3] 13:2,20 28:19 lay [1] 41:5 least [4] 8:2 20:20 28:20,21 leave [2] 21:17 57:22 legal [3] 21:22 45:24 50:3 legislature [2] 59:13 60:19 legislatures [1] 67:14 legs [1] 28:20 Lehnert [10] 13:23 15:7 23:1 47: 14 52:9 58:17 66:4,13,18 67:5 less [3] 25:14 54:13,16 Letter [1] 36:10 level [1] 31:12 leverages [1] 40:7 life [1] 43:5 limit [2] 53:4 58:3 limitation [2] 40:21 67:20 limitations [4] 38:24 39:3 40:1 57: 1 limited [2] 12:16 24:8 limiting [2] 13:5,6 line [15] 38:14,14 42:20 43:5 44:20 47:13,18,20,22 48:2 52:10 64:20, 24,25 66:18 listen [3] 8:8 9:7,8 listening [2] 8:4,7 litigate [1] 30:23 litigation [1] 12:10 livelihoods [1] 19:6 lobbying [3] 52:22 53:1 58:9 local [1] 52:2 Heritage Reporting Corporation Sheet 4 government - local 76 Official - Subject to Final Review � logic [1] 44:16 long [3] 45:2 49:18 50:25 long-term [1] 30:21 look [9] 24:18 27:25 38:3 44:23 56: 8,10,24 5:7 6:20 7:18,23 8:24 9:3, 20 10:21 11:6,19,24 12:7,14 14:7 16:1,5,11,16,24 17:15 18:4,9,16 19:11,24 20:18 21:2,6,21 27:8 48: 5 68:6,7,9 69:19 70:3,7,20 71:3 18 57:20 62:11,12 63:21 looking [1] 30:20 Messenger's [1] 29:23 lose [1] 70:23 method [1] 28:12 lot [5] 23:17,22 25:18 66:25 68:24 might [2] 51:7 65:22 lots [1] 13:1 militant [1] 49:3 love [1] 41:1 million [2] 19:3 70:13 millions [4] 17:2 19:2,6 36:13 M mind [1] 63:12 machine [1] 7:4 minor [1] 70:16 made [1] 68:10 minority [3] 52:16 54:25 61:25 Madison [1] 13:1 minutes [1] 68:6 majority [2] 62:1 67:11 mobilization [1] 49:17 malfeasance [1] 16:9 modern [4] 12:19,23,25 13:4 Man [4] 43:2,20,24 52:22 moments [1] 45:20 manage [2] 57:24 59:3 Monday [1] 1:12 management [3] 53:21 63:13 64: money [8] 6:9 9:15 30:6,8 64:12, 3 14,18 68:15 managerial [4] 45:18 46:3 58:21, Moore [1] 43:3 21 morale [2] 62:9,17 manages [1] 35:19 morning [2] 4:4 35:25 Mancur [1] 48:23 most [5] 13:25 20:20 47:21 52:5 mandate [2] 54:24 55:4 59:21 mandated [6] 21:24 52:12,14 53:7 motion [5] 26:10,12,13 38:2 48:17 58:4 66:5 move [1] 18:5 mandatory [4] 5:2 52:22 53:5,8 movie [1] 43:2 manifest [1] 50:11 much [11] 24:21,25 25:7 27:3 31:8, manner [1] 61:13 24 33:23 35:18 37:22 38:13 65:16 many [13] 12:23 18:11 19:5 20:4,5, multiple [1] 8:8 16 34:6,12 38:7 42:19 47:7 65:17 MUNICIPAL [3] 1:7 4:6 48:9 67:21 municipalities [1] 18:25 Marbury [1] 13:1 must [1] 66:6 MARK [1] 1:3 N marker [1] 41:6 narrowly [1] 8:19 marketing [1] 9:12 nature [8] 15:21 16:22 31:10 33:8 marketplace [1] 40:8 34:20 37:13 42:23 49:19 massive [1] 46:21 near [1] 13:11 matter [20] 1:14 13:7 17:16 18:5 21:23 30:10 31:19,23 32:17,23 41: necessarily [5] 10:8 14:19 15:3 11 62:7,16,19,21,24 63:2,19 65:24 21:22 29:13 69:21 necessary [2] 8:25 23:3 matters [14] 16:23 30:4 32:22 33:6 necessity [2] 22:23 50:8 37:12 41:16 57:18 61:1,3,5 65:21, need [6] 7:24 8:19 22:8 26:11 29: 22 70:16,18 19 49:9 mean [11] 13:9 18:10 20:25 25:24 needs [1] 68:16 32:17 44:20,23 50:20 52:25 53:2 negative [1] 25:25 65:13 negotiate [2] 15:23 65:14 negotiated [1] 26:19 Meaning [2] 26:2 56:9 negotiating [5] 10:1,2 26:25 32:1 means [4] 8:2 26:18 30:22 67:18 67:17 mechanical [1] 25:16 negotiation [6] 24:6 32:2 46:16 meeting [1] 40:25 59:6,10 63:7 member [1] 45:9 members [6] 10:3 24:9,14 45:6 49: negotiations [2] 37:14 63:13 5 52:16 neutrality [1] 12:13 never [6] 36:3 42:1,5 47:6,10 56:7 membership [1] 48:20 new [4] 14:19 26:25 34:2 48:8 memo [1] 44:13 newsletter [1] 54:2 mentioned [1] 70:17 next [2] 22:7 26:25 merely [1] 16:19 night [1] 55:13 merit [1] 46:19 NOEL [3] 2:6 3:6 22:16 messages [2] 6:12,12 MESSENGER [46] 2:3 3:3,18 4:7, non-chargeable [1] 47:18 nonmembers [6] 9:23 10:6 11:14, ought [1] 50:5 out [17] 10:17 24:18 28:20 37:4 38: 17 70:4,8 normal [1] 48:7 north [1] 24:19 note [2] 51:20 65:4 nothing [2] 44:16 46:6 notices [1] 38:4 nowhere [1] 4:20 number [4] 20:19 24:17 25:23 26: 5 numerous [1] 38:22 O O'Connor [1] 13:22 object [1] 55:4 obligations [1] 48:19 obviously [1] 48:17 occurring [1] 20:4 occurs [1] 59:11 odds [1] 4:16 offered [1] 47:17 office [2] 40:20,25 official [6] 36:23,24 39:6,9,20 40:1 oftentimes [3] 6:23 16:11,12 Okay [6] 12:21 23:20 40:20 41:7 65:1,1 4,10 44:9 45:7,18 49:4 54:5 58:9, 19,20 64:2 66:12,13 out-years [1] 38:7 outcome [1] 44:17 outside [5] 6:11 45:15 53:11 56:1 61:6 outweigh [1] 61:19 over [11] 10:7 15:10 17:1 19:2 32:1, 15 41:22 49:18,23 59:6 63:18 overall [2] 31:14 32:8 overlap [1] 47:19 overriding [1] 47:1 overrule [4] 48:14 66:14 67:11,25 overruled [3] 4:12 18:18 48:6 overtime [1] 60:8 own [1] 9:15 P PAGE [1] 3:2 paid [2] 43:5 60:6 pain [1] 55:1 parameter [1] 59:11 paramount [1] 45:17 part [7] 27:21 29:23 34:2 52:12 53: 15 54:21 66:15 old [1] 12:25 older [2] 12:19 13:3 participate [2] 8:12,14 Olson [1] 48:23 participation [1] 7:10 once [6] 16:21 18:24 19:7 22:1 28: particular [5] 21:18 32:2 50:7 63: 4 42:5 22,24 One [28] 4:25 8:4,7,18 13:5,17 17: particularly [2] 14:4 26:16 10,23 21:18 22:7 23:15 28:20 33: partner [3] 9:11 46:15,17 6 38:24 43:15 44:15 47:15 55:10, party [2] 36:18,19 23 62:5 64:6,12,13,17 65:7,11 68: pass [2] 10:19 48:8 20 69:24 past [1] 50:16 only [11] 5:23 8:7 9:13 14:9 42:22 patronage [1] 14:14 46:16 49:21 50:14 51:9 62:15 68: pay [11] 8:12 10:20 29:25 37:2 45: 1 55:5 61:1 62:20 64:3 68:12 70: 14 paying [1] 10:17 payment [1] 43:14 payments [2] 5:3 49:9 55:9,16 56:17 57:10 62:10 66:3 peace [8] 6:16 7:15,25 8:3,5 28:4, 7,23 opportunity [1] 53:16 oppose [1] 10:15 penalty [1] 64:10 opposed [2] 9:13 44:14 people [13] 6:9 9:13 10:15,16 28: 23 38:10 42:19 45:1 50:17 52:6 opposite [2] 6:23 20:25 55:4 69:25 70:1 oral [9] 1:14 3:2,5,10,13 4:8 22:16 35:12 51:16 percent [10] 24:12,17,20 37:11,13 order [5] 14:8 25:13 32:8 34:23 60: 62:6,25 63:16 65:12 70:14 2 percentage [1] 37:24 ordinarily [1] 62:20 perfectly [1] 11:10 organization [2] 32:7 55:19 perform [1] 52:7 organized [1] 7:4 perhaps [1] 63:18 organizing [1] 49:17 permission [1] 17:22 original [1] 56:9 permit [3] 6:8,13 33:20 origins [1] 56:20 permitted [1] 8:14 Orwellian [1] 41:14 person [6] 43:11 55:20 64:12,13, other [19] 4:17 9:8 12:9 14:4 15:11, 17 69:16 16 21:25 23:5,22 26:8,9 32:25 35: person's [1] 43:9 24 36:8 49:8 50:2 67:10 70:6,16 personnel [2] 35:19 46:10 others [4] 6:19 30:17 46:6 49:23 persuade [1] 55:23 otherwise [1] 68:17 persuading [1] 67:11 13 opening [1] 63:9 operates [1] 18:12 operation [1] 18:13 opinion [10] 27:19,21 28:15 47:15 Heritage Reporting Corporation Sheet 5 logic - persuading 77 Official - Subject to Final Review � Petitioner [9] 1:4 2:4,9 3:4,9,19 4: 36:18,18 41:12,18,19 52:3 62:7, 24 9 22:18 41:22 PETITIONERS [1] 68:8 privatization [1] 46:19 pick [1] 68:10 probably [3] 19:2 27:2 39:10 Pickering [18] 31:2,9,16 33:8,9,16 probing [1] 10:24 34:21,21,25 36:7 38:22 40:12 41: problem [6] 14:1 15:7 47:24 49:20 7,8 44:8 61:17,22 62:4 53:13 65:5 place [4] 32:3,6 50:25 63:14 procedures [1] 64:5 places [2] 4:16 20:4 process [9] 29:7,9,10,21 46:15 52: 12 64:1 68:23 69:10 play [1] 43:2 please [6] 4:11 22:20 29:16 35:16 processing [2] 68:25 70:11 51:2,19 Professor [2] 13:24,25 plenty [1] 49:1 prohibit [2] 33:10 35:4 plurality [1] 47:16 prohibits [1] 10:24 plurality's [1] 47:22 promotion [1] 46:20 pocket [1] 9:15 property [1] 19:4 point [13] 12:10,11 14:9 15:6 26: prophylactic [1] 50:12 10,15 44:2 50:2,3 58:19 64:2 68: proposition [1] 68:11 10,23 prosperity [1] 28:7 pointed [1] 37:4 protected [1] 17:12 points [2] 26:8 41:23 protection [5] 15:3 16:4,10,19 68: policies [5] 4:15 36:9 55:5,6 57:22 15 policy [12] 6:12 16:23 18:1,6 30:17 provide [3] 7:10 11:14 52:19 45:8 47:9 58:21 65:15 69:9,15,18 provides [3] 9:6 12:2 66:4 political [14] 7:1,4 15:1,1,18 17:4 provision [6] 12:1 21:9,18 22:1 29: 33:10 36:19 37:13 42:7 53:23 54: 6 51:10 3,14,16 provisions [5] 19:14 20:14 21:13 27:5 51:10 politicalization [1] 7:2 position [12] 11:3 28:5 30:9,19 34: public [63] 5:3,23 7:10 16:23 17: 2,14 39:11 45:8,11 56:2 64:8,9 17,18 18:1,5,13 20:19 28:13 30:5, 5,10,12,14,16 31:12,19,23 32:5,22 positions [2] 34:7 55:21 33:22 36:8,13 37:2 41:16,24 42:3 posits [1] 63:9 47:8,9 52:6,7 56:8,10,23 57:18,23 possible [2] 41:13 56:3 59:15,21 61:3,5 62:7,16,19,21 63: possibly [1] 41:2 2,14,19 64:15,17 65:2,15,22,24 69: Post [1] 13:25 Postal [7] 23:12,13,21 24:4,10,16, 2,14,18,21,21 70:18,22,24 18 publicly [2] 38:3 45:10 Powell [2] 14:13 65:5 Puerto [1] 18:23 power [2] 32:13 65:25 purpose [4] 7:13,14 29:19 55:18 powers [1] 9:6 purposes [1] 29:11 practice [4] 5:15 20:1 47:19 55:2 pursuant [1] 39:20 precedent [2] 14:16 66:21 push [1] 63:17 precedents [3] 4:18 14:17,18 put [5] 13:21 17:21 18:21 35:22 59: 20 predicated [1] 29:19 predictive [1] 50:6 Q preface [1] 41:4 [2] 25:5,5 quarter [1] prerogative 54:23 [1] prerogatives [4] 36:1 45:18 51:25 quelled 61:24 [27] 5:22,25 8:17 9:21,22 question 61:12 22:24 23:16 27:7 34:18,20 36:2 [1] pressure 49:25 41:4 42:10,17 45:8 50:23 52:9,13, presumably [1] 21:12 25 54:21,21 56:19 59:25 60:1 65: pretextual [1] 40:10 20 66:19 69:18 [2] prevail 27:10 54:13 questions [4] 12:17 14:8 16:23 58: prevalence [2] 19:13 20:9 20 prevent [1] 68:12 [1] 12:17 quick [2] preventing 7:2,3 [5] 19:21 31:4 32:19 42:23 quite price [1] 8:13 59:20 principle [6] 13:6,7 57:3,6,12 65: quote [1] 50:7 10 Railway [3] 13:11,12 14:22 raise [5] 9:23 62:6,21 65:22 67:25 raises [1] 29:10 raising [1] 57:18 rampant [1] 33:18 range [2] 24:5,8 rate [2] 25:15 64:19 rates [2] 48:21 64:15 rather [2] 9:15 31:2 ratify [3] 59:14 60:21,21 rationales [1] 4:20 reach [1] 7:24 read [6] 21:1 28:15 49:15 55:9,12 principles [1] 62:3 R printing [1] 25:17 radical [1] 34:2 prior [4] 14:16,21 22:4 34:7 railroad [1] 13:13 private [21] 5:4,6,21,25 7:13 14:24 railroads [1] 64:14 representatives [1] 38:9 representing [2] 39:12 46:6 represents [1] 63:1 require [2] 11:13 21:9 required [8] 12:6 40:23 41:15 42: 15:4 25:11,15 27:11,17,22 32:7 56:6 reading [1] 29:5 real [1] 48:10 reality [3] 23:23,24 47:3 really [9] 13:18 22:9 23:6 30:3 31: 18 44:12 52:7,16,19 requirement [2] 11:16 53:15 reserve [1] 22:11 resistant [1] 69:7 resolution [1] 37:6 resolve [1] 29:14 resources [5] 9:11,17 11:4,7 48: 22 respect [9] 5:8,21 15:5 41:24 47:6 57:2 59:16 61:13 65:14 Respectfully [1] 27:16 respond [1] 51:3 Respondent [3] 2:16 3:15 51:17 Respondents [5] 1:9 2:13 3:12 4: 19 35:14 responses [1] 24:4 responsible [1] 46:13 rest [1] 24:6 14 40:10 53:12 69:13,14 Restatement [1] 20:22 reason [9] 9:3,25 19:15,15 20:5,10 restrict [2] 43:11 65:25 31:11 47:21 53:25 restricting [3] 6:21,25 7:1 reasons [4] 5:11 10:19 27:18 33:6 restriction [3] 42:12,14,20 REBUTTAL [2] 3:17 68:7 restrictions [1] 61:19 recent [1] 22:6 restrictive [1] 8:2 recently [1] 70:12 result [1] 11:11 recognize [3] 11:2 35:17 43:19 results [1] 4:20 recognized [4] 6:4 16:25 43:18 retaining [2] 4:22 19:15 45:16 reverse [1] 26:13 record [4] 23:17 26:11 38:1,6 reversing [3] 19:16 20:5,10 recruit [2] 24:9 52:5 review [1] 53:16 reference [1] 12:8 revised [1] 34:14 referencing [1] 37:5 revisiting [1] 66:18 reflects [2] 34:21,25 Rico [1] 18:23 Regardless [1] 34:17 riding [1] 9:2 regards [1] 46:1 rights [6] 19:4 20:6 56:11,21 57:5 68:21 regulated [4] 7:11 13:13 14:5 28: 14 Riley [1] 42:13 regulates [1] 35:20 rises [1] 31:12 regulating [3] 5:15 6:6 57:4 ROBERTS [13] 4:3 22:13 35:9 49: 7 51:2,13 59:1,5,15 65:9 68:4 71: rein [1] 57:4 1,6 relations [2] 7:15 12:1 relationship [2] 40:6,7 Roe [1] 36:12 relationships [2] 46:10 50:11 room [1] 13:2 reliance [12] 18:17,19 19:22,24,25 routine [1] 6:17 22:9 26:16,21,23 51:4,11 67:9 rule [7] 6:2 20:22 36:12 50:21,24 56:15 66:12 remainder [1] 22:12 remaining [1] 68:6 rules [2] 67:17 70:6 remember [1] 43:1 run [1] 57:11 remotely [1] 18:19 runs [1] 8:15 removed [1] 43:15 S renegotiate [2] 51:9 60:22 [13] 7:5 23:21 33:3,4 40:23 same renegotiated [3] 22:8 38:8 48:9 42:15 44:4,6 45:8 49:25 54:4 61: repeatedly [1] 36:7 21,22 represent [6] 8:23 9:23 32:12 45: [1] 36:12 San 25 52:16 54:25 [1] 8:2 satisfy [6] representation 8:25 9:4 12:3 [1] 56:6 saw 52:15 61:24 66:8 [12] 11:1 17:8 23:20 31:5, representative [5] 10:7 23:4 32: saying 11 37:8 66:6 17 32:22 43:3 44:4 57:8 60:11 66: 5 69:13 says [11] 17:24 20:24 27:13 43:11 52:21 54:2 55:16,17 57:11 62:6 64:3 scale [8] 16:25 17:4,12 18:7,9,15 Heritage Reporting Corporation Sheet 6 Petitioner - scale 78 Official - Subject to Final Review � smearing [1] 63:25 scales [1] 19:23 solely [1] 14:19 Scalia [4] 13:22 47:14 52:17 58:17 Solicitor [3] 2:6,11 35:13 Scalia's [2] 47:20 66:3 solve [1] 13:25 scenario [4] 41:14 43:21,24 63:22 somebody [2] 43:8 44:3 school [1] 67:14 somehow [1] 36:1 scope [6] 32:9 33:6,16,21 36:2 61: someone [1] 6:15 12 Sometimes [2] 60:17,18 scrutiny [7] 4:14 14:14 35:1,3 41: sorry [3] 6:3 14:17 33:13 21,25 42:2 SOTOMAYOR [39] 6:3 7:8,20 8: 10 9:1 15:20 16:2,7,12,17 17:6,20 search [1] 49:4 18:7,15 23:10,14 24:1,21,25 25:7, searches [1] 20:2 11,16,20,24 26:2 33:13,15,25 34:5, Seasons [3] 43:2,21,24 second [4] 22:24 31:1 45:23 46:11 11 44:18,23,25 45:6 69:11,23 70: 5,19,21 sector [17] 5:4,4,6,22,23,25 14:24 15:4 20:19 25:9,11,15 27:11,17, Souter [1] 13:22 22 32:5 52:3 Southworth [1] 45:14 security [1] 67:24 sovereign [3] 35:20 48:2 54:22 see [7] 8:21 14:2 36:10,11 50:8 56: speaking [2] 16:6 45:3 7 64:11 specifically [1] 13:24 seems [2] 37:21,21 specter [1] 68:1 seen [3] 20:21 28:19 48:22 speech [35] 4:14,17 5:20 6:21,22, 25 7:7 29:24 30:4,9 33:4,10 35:23 send [1] 26:14 36:2,16 37:8 38:17 40:9 42:14,21, sense [1] 25:25 21 43:15 44:19,21 48:1 55:25 56: separate [2] 29:8 47:14 10 61:1,13,20,25 62:13,22 63:12 serious [4] 29:10 47:9 51:5,11 66:1 seriously [1] 43:19 servants [2] 56:23 59:21 spend [1] 45:20 serve [1] 46:3 spoke [1] 48:23 Service [7] 23:13,13,21 24:5,10,16, spokesman [2] 45:22,24 18 Springfield [1] 2:3 services [6] 11:14 18:14 30:15 37: stable [1] 46:13 3 52:6,18 stage-in [1] 17:17 session [1] 26:25 stake [1] 57:7 set [5] 32:8 54:23 59:10 60:17 64: stare [6] 4:21 14:2 19:20,21 22:24 36:2 71:4 16 setting [3] 5:19 9:12 45:10 settled [1] 53:19 seven [1] 38:13 severability [4] 20:14,16,21 51:6 severable [1] 21:7 shadow [1] 26:19 share [1] 6:10 Shelley [1] 27:12 short-lived [1] 26:24 short-term [1] 49:4 shouldn't [3] 7:20 47:25 58:7 show [2] 49:1 66:1 side [7] 14:1 23:5 35:24 49:8 63: 26:15 starts [1] 18:5 STATE [53] 1:6 2:12 3:12 4:5 5:5, 13,22 6:1 7:17,21 8:15,17 11:18, 23,24,25 15:23 16:8,14 17:10 27: 23 35:14,18 38:25 39:1,5,12 40:5 42:4 45:16 46:23,25 48:8,13 50: 12 51:5,6,8 52:4,21 53:7,7,13 58: 5,19 59:6,13,17 60:9 64:10 66:5 67:14 70:13 state's [4] 5:14 41:9 45:19 58:23 state-mandated [2] 55:19 64:5 stated [1] 5:11 STATES [19] 1:1,15 2:8 3:7 11:13 23 64:6 67:10 18:22 19:5,17 20:9 21:23,25 22: 17 28:2 29:1 30:21 53:4,19 54:21 sides [2] 23:19 42:15 60:16 siding [1] 28:15 significant [1] 70:11 Statistics [2] 24:11,24 simply [3] 27:4,23 67:6 statute [8] 21:24 48:8 52:14,19,21, since [5] 12:15 27:3 29:15,17 35:2 21 58:11 70:7 single [4] 45:22 55:10 69:14 70:22 statutes [2] 18:24 19:5 site [1] 17:10 statutorily [1] 52:12 situation [4] 38:23 39:22 40:15 46: statutory [1] 15:12 5 stays [1] 22:1 six [1] 38:12 step [5] 31:1 41:7,8,17 43:15 size [5] 30:13 31:15 32:9 46:18 60: Stewart [2] 13:9,9 7 stick [2] 49:6,22 slew [1] 4:17 still [6] 7:16 17:13 24:19 36:4 41:6 55:25 slightly [1] 50:22 stipulate [1] 59:22 stood [1] 17:19 stop [1] 50:12 stopped [1] 45:2 story [1] 40:11 straight [1] 41:25 strength [1] 41:9 stretch [1] 43:21 strict [3] 41:21,25 42:2 strikes [2] 30:19 67:24 striking [3] 31:5 67:21 68:13 strong [1] 18:19 struck [1] 32:18 structure [3] 30:13 31:15 32:9 student [8] 4:25 5:8,9,16 7:9,9 8: 11,13 students [1] 8:12 studies [2] 49:1,15 subject [13] 15:2 18:8,10,10 22:2 24:13 41:12 42:24 52:22 53:5,8 55:1 64:10 subjective [1] 10:25 subjects [3] 30:2 33:3 58:4 submit [10] 9:24 10:21 11:10 15: 18 18:4 20:12 21:7 24:7 68:13,19 submitted [2] 71:7,9 subsequent [1] 14:17 subsidization [3] 7:12 36:18 55: 18 subsidize [3] 11:9 35:7 68:17 subsidy [2] 44:21 45:4 substantially [1] 11:5 substantive [1] 16:22 succeeds [1] 67:10 suddenly [2] 28:11,20 sufficient [1] 61:18 suggested [4] 10:14 15:6 40:19 48:5 suggesting [3] 15:22 66:14,17 superior [2] 47:15,22 supervisors [3] 40:20 41:1,2 support [10] 2:9 3:8 6:22 7:6 10: 16,23 15:19 22:18 29:20 48:20 supporters [1] 9:14 Suppose [2] 37:10,11 supremacy [1] 43:4 SUPREME [4] 1:1,15 54:3 70:15 surrounding [1] 51:10 survive [1] 20:12 sustained [1] 50:18 system [7] 28:21 52:2 53:19 54:22, 24 60:3,16 T table [6] 9:8,18 16:21 18:22 23:5 47:8 tailored [1] 8:20 talked [1] 68:24 talks [1] 33:18 tangibly [1] 48:18 taxes [1] 46:23 taxpayers [1] 30:7 teacher [1] 46:20 teaching [1] 34:25 tend [1] 49:2 tenure [2] 46:20 60:8 term [2] 34:6 49:19 terms [6] 20:11 23:2 32:15 58:6 63: 21 69:3 test [8] 15:6,11,12,15 33:16 47:17, 23 53:6 tested [1] 24:2 tests [1] 36:8 text [1] 48:24 there's [8] 8:10 9:20,25 23:6 35:5 53:3,13 66:1 therefore [2] 6:1 64:4 they've [3] 12:9 18:2 28:19 third [5] 5:3 15:5 22:25 25:5 27:19 third-party [2] 32:7 35:7 Thomas [1] 43:3 though [3] 24:14 28:22 41:5 thousands [3] 17:3 18:25 67:12 three [13] 4:25 12:16,16 13:19 14: 2,5 22:7,21 34:15 38:12 50:15 56: 19 58:5 Throughout [2] 42:19 68:1 tied [1] 69:10 today [4] 35:21 57:3,7 68:24 together [3] 31:21 32:24 33:1 top [1] 26:5 topic [1] 50:15 topics [1] 47:7 towards [1] 18:5 tradeoff [2] 67:23,24 training [1] 16:14 transform [1] 16:18 transformative [1] 16:21 treats [1] 36:5 tried [1] 42:11 tries [1] 15:23 true [3] 21:12,22 67:21 try [3] 13:17 54:2 55:23 trying [5] 12:18 26:8 32:17 50:22 69:5 turn [1] 67:9 Turning [1] 26:15 Twenty-three [1] 18:22 two [15] 5:8 9:21 13:6 19:11 24:3 26:8,17 33:6,7 42:15 46:2,3 49:13 55:22 68:6 two-tiered [1] 46:7 U unanimously unconstitutional [2] 18:24 21:16 under [15] 15:14 20:2,22 23:9 26: [1] 51:23 19 30:24 31:2 33:16 37:6 41:6,8 51:5,8 52:1 70:7 undercuts [1] 4:21 underlines [1] 40:5 underpaid [1] 59:22 understand [7] 12:4 32:18 34:1 39:10,21,24 59:9 understood [2] 58:1 60:25 unfair [1] 63:25 unfettered [1] 56:23 unfold [1] 50:9 Heritage Reporting Corporation Sheet 7 scale - unfold 79 Official - Subject to Final Review � 21,25 65:12,13,14 uniformly [1] 35:17 union [54] 5:24 8:4,8 9:5,14,14,16, wages/hours [1] 65:6 23,25 10:3,6,9,16,16,18,23 11:7, walk [1] 17:22 10,16 14:24 15:10,21 16:13 17:7 wants [7] 18:2 39:2,5 41:22 45:11 21:20 24:9,14 25:21 31:18,22 32: 7,10 33:2,2 37:12 45:9,12 48:20, 21,21 49:22 52:15,18 53:14 54:2, 25 55:4 56:8 62:25 63:10 64:8 66: 6 67:23 69:4 union's [2] 10:4 37:24 unionism [4] 19:14 20:9,14 21:24 unionization [1] 25:8 unionized [2] 25:1,6 unions [23] 8:9,23 9:6 10:13 11:2, 14 12:10 13:15 14:4 21:14 23:11 28:9,13 47:8 49:2,10 53:24 54:13 59:16 68:12,17,18 69:12 unit [1] 10:2 UNITED [8] 1:1,15 2:8 3:7 22:17 28:2 29:1 30:21 universe [1] 63:8 university's [1] 5:18 unrest [1] 68:1 until [1] 26:24 untold [1] 68:1 unusual [1] 30:19 up [17] 5:19 17:11,19,23 19:2 26: 11 35:21 37:25 45:10 47:7 49:24, 24,24 52:2 53:14 54:23 68:10 upheld [2] 51:23 61:15 uphold [1] 36:9 upholding [1] 36:11 usual [2] 19:20,21 utility [1] 64:17 V vacation vacuum [1] 38:16 vagueness [1] 47:23 valuable [1] 9:5 value [1] 4:22 varies [1] 11:19 various [1] 30:1 vault [1] 41:22 versus [3] 4:5 13:1 36:12 view [5] 37:15 38:18 47:15 51:11 [1] 29:25 54:12 viewpoint [1] 12:13 viewpoint-neutral [1] 5:19 views [1] 36:19 violated [1] 20:7 violating [1] 70:5 violations [1] 19:17 Virginia [1] 2:3 visible [1] 50:18 vitality [1] 26:22 vividly [1] 30:16 voluntary [2] 48:20 49:9 W wage 53:8 69:6 Washington [3] 1:11 2:7,15 way [12] 6:18,23 8:11 33:22 34:6 38:5 40:7 43:10 50:18 57:25 59: 20 65:2 ways [2] 18:11 46:4 weight [1] 37:22 well-fitted [1] 8:18 well-resourced [1] 46:14 well-tailored [1] 8:19 Whereupon [1] 71:8 whether [16] 6:1 7:19,25 17:7 23:2 44:2 51:24 52:13 53:6,6 54:12 62: 9,16 64:6,21,22 White [1] 56:24 White's [3] 56:17 57:10 62:10 whole [8] 20:25 23:22 29:15,17 36: 6 69:21 70:9,17 wide [1] 10:5 wide-scale [1] 19:16 wield [1] 32:13 will [14] 11:3 13:2 20:12 22:7 30: 23 49:9,20,25 54:4,13,15 59:22 67:12 68:18 WILLIAM [5] 2:3 3:3,18 4:8 68:7 willing [1] 52:5 wish [1] 10:23 within [3] 53:19 59:11 60:20 without [2] 23:11 31:21 wonder [2] 12:15 28:16 wonderful [2] 55:15,16 Wooley [1] 42:13 word [1] 67:5 words [3] 15:11 34:23 35:5 work [6] 26:3 38:11 46:13 60:7 65: 13 67:13 work-related [1] 17:13 worker's [1] 62:20 workers [5] 19:3 28:18 60:3 61:16 63:13 workforce [2] 7:3 46:19 working [4] 46:9 50:10 58:3 64:25 workplace [25] 6:16,17 24:22 25:1, 5,6 30:6 31:20 36:9 37:3,5 38:11 39:6 41:15 45:15 46:7 50:6 57:5, 24 59:4 62:9,17,22 70:2,6 works [3] 31:10 60:16 67:17 worry [1] 54:3 worth [1] 70:10 wrapped [1] 37:25 write [2] 44:12 60:5 writing [1] 40:18 written [1] 58:6 wrote [2] 13:10 44:15 Y [8] 31:11 32:2 37:13,14,14 year's [1] 70:10 62:25 63:16 70:14 years [8] 12:20 22:8 28:3,7 48:7 wages [15] 15:23 17:11,24 18:11 50:16 51:22 58:6 32:24 46:21 58:3 59:6,18 60:6 64: Heritage Reporting Corporation Sheet 8 uniformly - years