The Court's Close Call on Unions

Ignoring precedent—and forgetting the desire to appear non-partisan—set the stage for the destruction of public-sector unions.

Tuesday’s terse 4-4 affirmance in Friedrichs v. California Teachers Association brings at least a temporary cease-fire in an unsavory legal war. The entire four-year process—signaling from the bench by Justice Samuel Alito and a frenzied response by the right-to-work groups—has seemed like, to use a term in vogue at the Court these days, an attempt to “hijack” the momentary one-vote conservative advantage on the Supreme Court and destroy an established precedent for the crassest of partisan reasons. Until the death of Justice Antonin Scalia, the hijackers seemed to be nearing victory. Now the window has closed for at least the near future, and perhaps forever.

Friedrichs was a challenge to the practice, permitted under the laws of about half the states, of permitting public-employee unions to charge non-members “fair share” or “agency” fees. Under this system, the majority of workers in a “bargaining unit” may vote to designate a union as their “exclusive bargaining representative.” Under the law, that union may then collect union dues from all workers who choose to become members. But no worker can be compelled to join, and regardless of whether a member joins or not, the union must represent all members. That means the objecting worker shares equally in higher pay, better health benefits, superior job protection, streamlined bargaining procedures, or other gains the union wins during bargaining with the state.

The theory of the “agency fee” is that non-members who benefit from the negotiations are “free riders.” So states may—if their legislatures wish—create an “agency fee” system in which the objectors pay only for the actual job-related bargaining costs. Union political activity, for example, is “non-chargeable,” because the First Amendment protects employees against subsidizing political speech to which they object. So the unions may collect from paychecks a fee only for the actual service they deliver.

In a 1977 case called Abood v. Detroit Board of Education, the Court gave its approval to the “free rider” argument. Objecting teachers in Abood had argued that all public-employee union activity was “political” in nature; thus, even subsidizing bargaining violated the First Amendment. The Court majority rejected that argument: “The differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights,” it said.

The Abood principle was reaffirmed, or at least applied, six times in the next two decades, most recently in 2009.  Under ordinary circumstances, the Court is expected to stick with a precedent like this unless there’s something unusual about it—for example, that it has become unworkable, or conflicts with other rulings. The fact that some judges didn’t agree with it when it was first decided, without more, is not supposed to be enough. Thus, for example, Justice Sandra Day O’Connor, Anthony Kennedy, and David Souter almost surely disapproved of Roe v. Wade­­—but faced with a chance to overrule it, they refused, instead “reaffirming” a limited version. But Alito at some point after that seems to have decided that Abood must go. In his opinion in a 2012 case called Knox v. Service Employees International Union, he tackled an issue the case did not present: “[C]ompulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,’” he wrote. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

That is justice-speak for “Bring me a case.” By 2014, a candidate had appeared: Harris v. Quinn, a challenge to a “fair share” arrangement for home-health workers in Illinois who were paid by the state using Medicaid funds. Abood seemed doomed. But in the end, the Court couldn’t muster five votes to overturn Abood altogether; instead, the conservative majority held that the home-health workers weren’t “full-fledged” state workers at all. The union lost because Abood didn’t apply.

Someone on the Court’s right side—it’s not clear who—had gotten cold feet with Harris; but it seemed likely that, if a case dealing directly with public-employees unions could be gotten before the Court, that justice would fall into line. The anti-union Center for Individual Rights rushed into court in California on behalf of ten public-school teachers (precisely the same kind of workers as in Abood) who object to the fees.

The plaintiffs declined to put on any evidence (that might, for example, have shown that the union’s activities actually are all political). When the trial court ruled against them (Supreme Court precedent, doncha know), they asked the Ninth Circuit to affirm that opinion as soon as possible.

Please rule against us as soon as possible, they seemed to be suggesting. No one cares what you think because when we get to the Show we have the votes. Or, that is, we have the votes now. If we wait, there may be a personnel change. Let’s get this done.

The Supreme Court heard Friedrichs on January 11. The lack of a factual record allowed Carvin to argue that every action a union takes is a matter of public-policy advocacy—even fire drills. “They do safety training,” conservative lawyer Michael Carvin said with a straight face. “Can you think of something that’s more a matter of public concern, that’s more of an ideological point, that’s more important? ... They’re basic to our democracy.”

After oral argument, the stage seemed set for a 5-4 decision that would at least hobble, if not destroy, public-sector unions in many states.

But fate intervened. Without Scalia’s vote, the challenge failed and the lower court’s ruling (calling the challenge “insubstantial”) is affirmed in a one-sentence order. That opinion has no precedential force. But precedent seems not to matter to conservatives in this area. Nor, for that matter, does simple shame, or even a desire to appear non-partisan. If a conservative majority re-emerges in the years ahead, expect the issue to reappear.