IN his vitriolic dissent last June from the Supreme Court’s same-sex marriage decision, Justice Antonin Scalia accused the majority of having carried out a “judicial putsch.” Justice Scalia should know. He and his four conservative colleagues were then in the process of executing one themselves.
On June 30, four days after handing down the marriage decision, Obergefell v. Hodges, the court announced that it would hear a major challenge to the future of public-employee labor unions. That case, Friedrichs v. California Teachers Association, was argued last week. As was widely reported, the outcome appears foreordained: the court will vote 5 to 4 to overturn a precedent that for 39 years has permitted public-employee unions to charge nonmembers a “fair-share” fee representing the portion of union dues that go to representing all employees in collective bargaining and grievance proceedings. As the exclusive bargaining agent, a union has a legal duty to represent everyone in the unit, whether members or not; the fee addresses the problem of “free riders” and the resentment engendered by those who accept the union’s help while letting their fellow workers foot the bill.
The stakes are obviously high for the millions of workers and thousands of contracts covered by these arrangements in the 23 states that now permit them. If the court accepts the argument that the mandatory fees amount to compelled speech in violation of the objecting employees’ First Amendment rights, public-employee unions would forfeit hundreds of millions of dollars in dues revenue. New York and 20 other states filed a brief in support of California, which is defending its fair-share system, to argue that these provisions “are important to ensuring a stable collective-bargaining partner with the wherewithal to help devise workplace arrangements that promote labor peace.”
I want to focus here, however, not on the implications the Friedrichs case holds for the public workplace, but on what it means for the Supreme Court. Actually, I couldn’t express my concern better than Justice Stephen G. Breyer did last week when he questioned Michael A. Carvin, the lawyer for the 10 California teachers who are challenging the state’s labor law. Justice Breyer was referring to the compromise at the heart of the 1977 precedent, Abood v. Detroit Board of Education, that Mr. Carvin was asking the court to overrule. The court in that case upheld the constitutionality of the fair-share fee as long as it was limited to the union’s collective-bargaining expenses and did not subsidize the union’s political or other “nonchargeable” activities.
“What is it, in your mind,” Justice Breyer asked Mr. Carvin, “that you can say from the point of view of this court’s role in this society in that if — of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well …” The justice ruminated for a moment on his own practice of filing dissenting opinions, and then returned to his point: “You start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?”
Indeed. Exactly seven years ago, in a public-employee labor case from Maine, Justice Breyer wrote an opinion that cited the Abood decision and included this sentence: “The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment.”
The opinion continued: “The court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing free riding by nonmembers who benefit from the union’s collective bargaining activities and in maintaining peaceful labor relations.”
The case was Locke v. Karass. The decision was unanimous.
What changed since 2009? How could the court go from unquestioning acceptance of a long-lived precedent to a situation in which all that remains in doubt is whether that same precedent will be overturned in early June or late June? In the answer to that question lie some disturbing observations about the Roberts court.
It’s no secret that in recent years, major segments of the Republican Party have declared open season on public employee unions — selectively, of course. Police unions and correctional officers’ unions, which have stood in the way of reform-minded policy initiatives in states and cities across the country, have been exempt as targets. Conservative and Tea Party ire has instead been focused on teachers’ unions. It’s not an accident that when Mr. Carvin (a leading figure behind the two failed challenges to the Affordable Care Act) and the right-wing foundations supporting his lawsuit set out to recruit plaintiffs, they looked for teachers and not prison guards.
Reading the transcript of last week’s argument, I felt as though I had stumbled into the inner sanctum of Wisconsin’s union-busting governor, Scott Walker. Both Justice Scalia and Justice Anthony M. Kennedy suggested that when it comes to public employment, there can be no real distinction between a union’s workplace activities and its political activities.
“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Justice Scalia said, addressing Edward C. Dumont, California’s solicitor general.
Justice Kennedy elaborated at length: “It’s almost axiomatic. When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?” He continued: “The term is ‘free rider.’ The union basically is making these teachers ‘compelled riders’ for issues on which they strongly disagree.”
That’s about as unconstrained and revealing a rant as I’ve heard from the Supreme Court bench. It happens also to be based on some false premises. California labor law does not in fact permit collective bargaining over teacher tenure or standards for termination or budget-driven layoffs. I’m no expert on California labor law; I read it in the union’s brief. But the details hardly matter. What matters is the glaring anti-union animus and the obvious fact that if everything a public employee union does is deemed political, the Abood compromise, based on a distinction between collective-bargaining activities and everything else, necessarily collapses.
And what exactly is it about the California teachers union’s activities that the plaintiffs find objectionable? Impossible to say. The initial complaint referred only to their dislike of “many of the union’s public policy positions, including positions taken in collective bargaining,” but the plaintiffs refused to be more specific or to cooperate with the union in developing an evidentiary record. Instead, the plaintiffs under Mr. Carvin’s direction sought to lose the case as quickly as possible, to speed it on its way to the Supreme Court. They asked the Federal District Court to rule against them, which it did, and they then asked the United States Court of Appeals to affirm that negative judgment, which it promptly did in a two-page summary opinion, observing that the outcome was “governed by controlling Supreme Court and Ninth Circuit precedent.”
To call this litigation pathway unusual is an understatement. But it was hardly a shot in the dark. In majority opinions in 2012 and again in 2014, Justice Samuel A. Alito Jr. — yes, the same Justice Alito who signed Justice Breyer’s opinion back in 2009 — suggested that he was ready and willing to revisit the Abood precedent. In the more recent case, Harris v. Quinn, he called Abood “troubling” and “questionable on several grounds.” But neither of those two cases offered a target for a direct hit. The current case was manufactured to serve that role.
If the political atmosphere surrounding public employee unions has changed, so has the court’s vision of the role of the First Amendment. The court issued the Citizens United decision, with its embrace of a First Amendment right to unlimited corporate (and union) political spending, a year to the day after Justice Breyer’s opinion in the Maine labor case. In the intervening six years, the Roberts court has waved the First Amendment banner ever higher to undermine long-accepted governmental regulatory authority. Not too long ago, it was federalism — states’ rights — that seemed to energize conservatives on the Supreme Court. The Abood regime is in fact more than respectful of states’ rights: states are enabled but not required to adopt a fair-share fee system, and 22 states have chosen against it. But federalism can’t save the unions from the ever more powerful First Amendment.
So what we have here are the majority’s policy preferences conveniently clad in First Amendment armor. But even the best armor is vulnerable, and as the court strides recklessly into a danger zone, I’m left with Justice Breyer’s question: What’s the country to think?
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