Supreme Court justices on Monday questioned why public employees should be forced to have to subsidize a union if they want to keep their jobs, appearing ready to deal labor a major blow.
The court’s conservative justices expressed skepticism during oral arguments in the case Friedrichs v. California Teachers Association that the fees were necessary to have smoothly functioning local, state or federal agencies.
The case is of major interest to labor unions, for whom the fees are a major source of revenue. Public-sector unions represent an estimated 7 million people, about half of the labor movement. Losing the ability to charge the fees would be a major financial hit to them.
The case involved a group of California teachers led by Rebecca Friedrichs who argued that the requirement that they pay the fees violated their First Amendment rights because the union used them to advocate for issues they did not agree with. Under state law they had no option but to pay. The Supreme Court had previously upheld such fees in a 1977 case called Abood v. Detroit Board of Education.
The plaintiffs in Friedrichs wanted the Abood decision overturned. The union’s lawyer and those for the state of California and the White House argued the decision was a workable compromise that ensured “labor peace” at government agencies and therefore should stand.
“What this court has said in Abood is that public employers should have the same latitude as private employers” to sign these kinds of contracts, said Solicitor General Donald Verrilli, who argued the same position as the union.
The court’s liberal justices appeared to agree that Abood should be left standing and that the First Amendment concerns raised in the case were minor.
“We’re talking about six people in a room bargaining about wages, hours and working conditions. That is pretty far removed from the heart of the First Amendment,” said Justice Stephen Breyer.
Four of the court’s conservative justices — Antonin Scalia, Samuel Alito, Anthony Kennedy and Chief Justice John Roberts — expressed skepticism during the oral arguments, indicating that there might be at least four votes to overturn Abood. The other conservative, Justice Clarence Thomas, characteristically made no comments during the arguments.
Scalia agreed that private employers could enter into contracts with unions that required all of its workers to either join a union or pay it a “security fee” to cover its collective bargaining expenses. But he indicated that he didn’t think public employers could do the same thing.
“It is one thing to provide [that authority] for private employers. It is another thing to provide it for the government, where everything that is bargained over is a matter of public interest,” Scalia said.
Scalia was the justice most watched in the case, widely seen as a potential swing vote. In a 2014 case called Harris v. Quinn he made statements during oral arguments that appeared to indicate that he thought that the government should have the same latitude as private employers to sign any union they wished. The union’s brief in the Friedrichs case was largely written to appeal to him.
However, Scalia on Monday repeatedly expressed skepticism about the union’s arguments. When the attorney representing it, David Fredrick, said that the agency fees were a necessary part of the union’s ability to collectively bargain, Scalia said he just didn’t see how that the difference in funding could affect the negotiations that much.
“You’re saying that if there are enforced fees to the union, the city will say yes?” he asked.
