I am traveling and have only a moment now to comment on today’s oral argument in Mulhall.  After reading through the transcript once, my quick initial reactions are as follows.

  • It is always hazardous to predict ultimate disposition from oral argument, but I would be shocked if the Court agreed with Respondent that bargaining agreements are always (or practically always) illegal under Section 302.  No Justice embraced or seemed convinced by that position.  Justice Ginsburg effectively demonstrated that Respondent’s absolutist position went far beyond what the Eleventh Circuit below – in what was itself an outlier case – held.  And Justice Kagan – who used to teach labor law – did an effective job in her questions of demonstrating how disruptive to labor law Respondent’s position would be.  The most devastating moment in the argument for Respondent came when Justice Kennedy, following Justice Kagan’s questions, asked: “Do you acknowledge that your — that your answer to Justice Kagan is – is contrary to years of settled practices and understandings?”  Respondent’s counsel contended that his position was not contrary to settled practices and understandings, but his answer was not terribly convincing, and the fact that Justice Kennedy asked the question is not a good sign for the fate of his argument.
  • That said, most of the Justices seemed to think that the bargaining agreement in the case did involve a “thing of value” that on its face implicated Section 302.  Only two Justices tried to offer a way out of the conundrum that a plain reading of the text seems to cut very far into settled labor practices – Justice Breyer with a purely purposive argument that would have excluded most organizing agreements from Section 302, and Justice Sotomayor with a more complex structural/purposive argument toward the same end.
  • The Justices pressed the advocates on the procedural difficulties with the case (which we have discussed here and here) – whether plaintiff had standing, whether the case is moot, and whether Section 302 properly creates a private right of action.  Most notably, and another bad sign for Respondent, Justice Alito – who wrote Knox – spent half of his questions asking whether the plaintiff had standing or the case was moot.
  • Bottom line: The Justices showed no enthusiasm for Respondent’s broad position.  But they also seemed unconvinced with Petitioner’s textual argument, and only a few Justices suggested ways to reconcile the plain text of Section 302 with settled labor practice and doctrine.  And a few Justices seemed to be looking for ways to get rid of the case without reaching the merits.  In short, except for pretty clearly ruling out Respondent’s broad position, the oral argument revealed very little about how the Justices will resolve the case.