West continued: "When there is the availability of a ready means for opting out of the participation in financing these causes, there is no compelled speech."
Kennedy stopped nodding. He seemed to be wondering how "ready" are these "ready means" in practice, but he let it go. After a few minutes, he returned with another question: "You want us to consider this case as if the First Amendment rights of non-union members were not involved?"
"Absolutely not," West insisted. Non-members have an "absolute right" to prevent the use of their funds for any kind of political speech "simply by sending in a letter."
Justice John Paul Stevens was openly skeptical: "So it's a First Amendment right that is waived by failing to make a timely objection?" It's not that a right is waived, said West, but Stevens persisted: "It's gone under your theory."
In the concluding minutes of oral argument, Justice Samuel Alito joined in expressing concern for the rights of teachers who have chosen not to join the union: "Isn't it overwhelmingly likely that if you spoke to them and you said, 'Would you like to give money to the union to spend on elections,' they would say no?"
"I absolutely disagree with you," said West. "It's not asking them to make a contribution. It's asking them, Is it OK with you if your money is used for this purpose?"
Alito asked, "What's the difference between asking, 'Would you like to make a contribution," and 'Would you like to allow us to use (your) money that we possess for our purposes rather than returning it to you'?"
"Well," said West, "whether there is a difference or not, the point is the union is using this money for purposes that it has every reason to believe are in the interest of the vast majority of teachers."
Roberts: "Surely they get to make that decision, don't they?"
Counsel's response appeared to be "yes and no," an answer that earlier provoked laughter in the courtroom. Justice Kilpatrick, meaning me, left the press benches thinking that the union's counsel had done his best -- but his best wasn't quite good enough.