As is often the case with the most transparently partisan appeals argued at the Supreme Court, Monday’s session on Friedrichs v. California Teachers Association—a case challenging the fair-share fees public-sector unions require nonmembers to pay in exchange for collective-bargaining benefits—makes most sense if you simply take your head off and refasten it again, upside down. In this world, embraced in full by the court’s right wing Monday, money always equals speech; unions won’t suffer at all for losing millions of dollars or much of their membership; precedent is only binding if you luuurve it; and the crushing harm caused by paying fees to an entity espousing messages with which you disagree far outweighs the harm arising from dismantling the nation’s public-sector unions. And anyhow—how can we know how bad it would be to kneecap public-sector unions until we try it? Hey! Let’s find out!
California and 22 other largely blue states require that public employees who are all represented by unions can choose not to join those unions but must nevertheless pay a “fair-share” or “agency” fee, which is directed toward the union’s collective-bargaining activities. Because these unions are the exclusive bargaining representative for all employees—whether they join the union or not—they must bargain for all employees, not just members. Nonmembers may still opt out of any fees associated with the union’s overtly ideological and political activities. Although this arrangement implicates some speech of the nonmembers, the Supreme Court determined in a landmark 1977 case called Abood v. Detroit Board of Education that this arrangement is constitutional. By asking nonmembers to contribute fees only for collective bargaining, the court sought to discourage free riders and to ensure “labor peace.”
Abood has been good law for the intervening four decades, although in 2014, in Harris v. Quinn, the five conservatives on the Supreme Court flirted with overruling it, and then in the opinion invited a challenge that would allow them to do away with the fees rule once and for all. The Center for Individual Rights, funded by a host of right-wing sorts, including the Koch brothers, hustled to produce that lawsuit and put it on the fast track.
The plaintiffs in this challenge are a third-grade teacher, Rebecca Friedrichs, and nine other California teachers who’ve opted out of the state’s teachers union, but still have to pay fees that go toward collective bargaining. They claim that this violates their First Amendment rights because it compels nonmembers to subsidize messages with which they disagree. They contend that the collective bargaining–politics distinction drawn in Abood to separate nonpolitical speech from ideological speech is false, since when it comes to public-sector unions, all speech is political and ideological.
Ordinarily you might think that overruling a 40-year-old precedent—around which thousands of union contracts are organized, and upon which half of the states have come to rely—would be a heavy lift for a court that prizes humility and restraint. Nah. This is an easy lift for Michael Carvin, who represents the teachers, and for the court’s five conservatives.
Justice Stephen Breyer cautions Carvin that this has been the labor rule for decades: “But it was 40 years ago. I mean, maybe Marbury v. Madison was wrong.” Breyer adds that overruling that precedent “would certainly affect the bar. It would certainly affect at least student fees at universities. It would require overruling a host of other cases … And 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?”
Elena Kagan tries to get Carvin to address the real-world fallout from doing away with the agency fees rule: “This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect maybe as high as 10 million employees.”
Later Justice Anthony Kennedy returns to this theme: “What about the answer to Justice Kagan’s questions about the perhaps thousands of contracts? Would they suddenly be endangered? Would they all be void?”
Carvin assures him, without explaining how, that “These contracts will operate precisely the same, the day after Abood is off the books.” Later he will similarly promise that nothing bad will happen without the agency fees: “The federal government doesn’t allow agency fees. And only a third of the members are union members, and yet, that—that union survives. … So the notion that anything could happen adversely here simply doesn’t square with things.”
Breyer challenges the notion that dues money is speech, telling Carvin. “You will go out this door, and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with … We’re talking about six people in a room bargaining about wages, hours, and working conditions. That’s pretty far removed from the heart of the First Amendment, and pretty close to ordinary physical activity carried on through words.” Carvin retorts: “As to requiring people to give money which they don’t wish to give, Thomas Jefferson said that was sinful and tyrannical.”
Throughout his argument, Carvin takes no crap from anyone, ever, bobbing and shifting his feet at the podium as the liberals pepper him with questions, and lacing his comments with zingers like, “If they required me to join the American Bar Association, I would have an absolute First Amendment right not to do that, because virtually every word out of their mouth I disagree with.” He dismisses his opponents brief as “their so-called opposition.”
Insofar as anybody thought Kennedy’s vote was in doubt in Freidrichs (nobody did), he also establishes early and often that he sides completely with the objecting teachers: “Is it not true” he asks California’s Solicitor General Edward Dumont, “that many teachers strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size? And that the union is basically making these teachers compelled riders for issues on which they strongly disagree?” Kennedy then reaches for the loftiness: “Many teachers think that they are devoted to the future of America, to the future of our young and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions.”
Justice Antonin Scalia, whose vote is similarly not in doubt, despite lots of hopeful speculation, asks Dumont, “Why do you think that the union would not survive without these—these fees charged to nonmembers of the union? Federal-employee unions do not charge agency fees to nonmembers, and they survive; indeed, they prosper?”
We already know that there is a difference between unions surviving and “prospering.” That is sort of the point. After Scott Walker pushed through his 2011 right-to-work initiative and gutted public-sector unions’ collective-bargaining rights, Wisconsin’s public union membership dropped by 70 percent.
David Frederick, who represents the unions in the case, explains that most of the agency fees are directed toward wholly “mundane issues about health and welfare benefits, what times teachers need to show up, how long their lunch break can be without having to perform a duty, what the policies are for transferring teachers between and among school districts …” To which Kennedy tartly retorts, “Well, I suppose, if that’s so convincing, the union can convince teachers to join the union.”
Later, Kennedy repeats that this is different from prior employment speech cases because “you’re again talking about a whole class of persons whose speech has been silenced, not just one person.” Frederick replies that their speech “isn’t silenced. They are paying a service fee so that the exclusive representative can negotiate their health and welfare benefits, their mileage reimbursement …”
Solicitor General Don Verrilli also comes into the case on the side of the unions. He disputes that there will be no effect if the unions lose significant funds and membership, but from another angle: “The union is going to have a different set of incentives, trying to ensure that the maximum number of people are willing to pay union fees,” he warns. “And the way that the unions are likely to try to do that is through trying to convince employees that they need the union because otherwise management is going to do them harm.”
Ultimately, the court’s conservatives all seem to feel that every one of these collective-bargaining issues—from mileage reimbursement to fire safety training—is indeed a “hot button” political issue. To subsidize advocacy on any of these issues is to compel wildly ideological speech. And maybe they aren’t wrong. That even safety training and mileage are policy issues we can fight about, is a sad comment about the state of public discourse. But don’t kid yourself: The Supreme Court isn’t resolving this fractiousness; it’s merely squelching one side.