Why Public Unions Should Be Afraid After Monday’s Supreme Court Arguments

A morning of tough questioning Monday at the Supreme Court suggested public unions have an uphill battle in convincing the court not to overrule a 1977 decision that allows them to charge non-members “agency fees” — fees that subsidize the collective bargaining that benefits all employees.

The swing justices whom union forces had hoped to bring to their side seemed skeptical, if not hostile, to their arguments. The best alternative liberals could put forward is that at the very least more fact-finding in the case is needed, considering what a major deal upending Supreme Court precedent is.

The case was Friedrichs v. California Teachers Association. It was brought by a handful of California public schools teachers along with a conservative Christian teachers’ organization who object to paying agency fees on the basis that it infringes on their First Amendment right to free speech. It was spearheaded by the conservative legal advocacy firm, in part after Justice Samuel Alito gave repeated hints in 2012 and 2014 opinions that he was willing to overrule the Supreme Court’s own 1977 decision Abood v. Detroit Board of Education.

It was no secret that Alito was wasn’t a fan of Abood. But going into Monday’s arguments, unions hoped they had an unlikely ally in Justice Antonin Scalia, who said in a 1991 case that if a public union was going to be required to provide services to both members and non-members, it may collect reimbursement from those non-members for those services.

If Scalia was still feeling sympathetic to the need for agency fees, he wasn’t showing it Monday morning.

He seemed to buy the challengers’ arguments that even when unions advocate for benefits like higher pay in collective bargaining negotiations, that is expressing a political view since it costs taxpayer money.

“It’s one thing to provide it for private employers,” Scalia said. “It’s another thing to provide it for the government, where every matter bargained for is a matter
of public interest.”

Justice Anthony Kennedy — often the swing vote in so many other high profile, partisan cases — also did not give much in defense of the agency fees, and instead said teachers, through the agency fees, were being forced to support hot button education policies.

“And is it not true that many teachers strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?” Kennedy asked before suggesting that unions were making teachers “compelled riders” (a play on the term “free riders” — meaning in this case employees who benefit from unions without paying for them, which agency fees seek to address).

Against this backdrop the liberals, led by Justices Sonia Sotomayor and Stephen Breyer, did their best to caution the court against overruling a decision around which states have crafted public employment policies around for decades.

Breyer wondered aloud that “if you start overruling things, what happens to the country thinking of us as a kind of stability in — in a world that is tough because it changes a lot.” He also said, somewhat trolling-ly, “I mean, maybe Marbury v.
Madison was wrong.”

Justice Elena Kagan noted that the two previous opinions that questioned Abood came from “two extremely recent cases.”

They said that the challengers had a “heavy burden,” as Kagan put it, in asking the Supreme Court to overrule Abood, and in particular that they were doing so in a case that had been rushed through lower courts. (Using Alito’s language in 2012 and 2014 decisions, the challengers had asked the lower courts to fast track it to the Supreme Court, without a full hearing on the evidence.)

A point of particular contention is whether the public employee unions would survive without collecting the agency fees. The government argued that it has an interest in allowing agency fees because it helps governments maintain a stable negotiating partner. Edward DuMont, the solicitor general of California and U.S. Solicitor General Donald Verrilli joined Frederick in arguing in favor of the unions.

“There are a lot of assumptions underlying your adversary’s position, whole set of questions: Can the union survive?” Sotomayor asked Frederick. Frederick used Sotomayor’s line of questioning to argue that, all things considered, it was up to the challengers to prove that the fee structure under Abood was unworkable.

There was also little discussion of the second question in the case, whether the “opt out” structure of paying union dues was unconstitutional, which the challengers put forward as an alternative if the court wasn’t ready to fully overturn Abood. The scant interest in the second question suggested the conservatives believe they have to votes to go all the way in the first.

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