Marcia Coyle, chief Washington correspondent at The National Law Journal, walks through some of the issues in Monday's big arguments in the union-fee case. This is the second time the issue of fair-share union fees is coming in front of the justices—the court deadlocked in an earlier case after the death of Antonin Scalia.

David Frederick of Washington's Kellogg, Hansen, Todd, Figel & Frederick will make the re-argument as counsel to AFSCME, and he's sharing time with David Franklin, the Illinois solicitor general. Arguing in support of the challengers: U.S. Solicitor General Noel Francisco and William Messenger of the National Right to Work Legal Defense Foundation, who represents Mark Janus.

We asked Frederick whether he's ever re-argued a case at the high court, and here's what he told us:

“Back in my SG days, I had to re-argue whether bank larceny is a lesser included offense of bank robbery under the federal criminal code. Spoiler alert: It isn't, by a 5-4 vote, with Justice Thomas writing and siding with our position. The first time the case came up, the defendant died of natural causes in prison after the argument but before decision. About two years later, the same federal defender got another case raising the exact same issue before the justices. Of course we didn't know the outcome of the first vote, but from the argument in the second case it was clear that the issue closely divided the court.”

And how might it feel going into Janus v. AFSCME—with predictions, from many observers, that Frederick will lose? Or at least face a really, really tough bench? Frederick says:

“I consider myself greatly honored to be in this position and am trying to present a better argument than I did last time.”

We'll have more on the arguments—and the week ahead—at Supreme Court Brief.

 

Read more:

Neil Gorsuch Won't Need an Introduction From This Advocate in Union-Fee Case

US Justice Department Takes Alito's Side in New Stance Against Union Fees

Kagan Questions US Solicitor's Absence in Labor Case

Union Fees Will Get Fresh Look at High Court, No Longer Deadlocked