Labor unions had largely pinned their hopes of prevailing in Monday’s Supreme Court case over unions’ right to charge fees on winning over Justice Antonin Scalia, who in the past has taken union-friendly positions in some employment-related issues. But during oral arguments, Scalia repeatedly expressed skepticism about the union stance, suggesting he instead would align with the court’s other conservatives.
If so, that could be a major blow for public-sector unions, since losing in Friedrichs v. California Teachers Association could mean losing a major source of union dues money. Heading into the case, the court is widely believed to have already had four justices in favor of the plaintiffs’ position in Friedrichs and four supporting the union’s side, with Scalia the supposed swing vote. The teachers union largely pitched its legal arguments toward winning him over.
Friedrichs involved the question of whether states such as California could enter into contracts with unions that required public-sector employees to join the union or at least pay it a “security fee” intended to cover its collective bargaining expenses on behalf of those workers. The plaintiffs in the case, a group of teachers who declined to join their union, argued those fees violated their First Amendment rights. The union and its allies argued that the fees, first allowed under a 1977 Supreme Court decision called Abood, were a reasonable compromise that should be allowed to stand under the legal principle of precedent, or “Stare Decisis.”
“Once Scalia alluded to the argument that everything a union advocates for in collective bargaining was inherently political, he seemed to be agreeing with the First Amendment argument,” said Vincent Vernuccio, an attorney with conservative Mackinac Center, which filed an amicus brief siding with the plaintiffs in Friedrichs.
Ordinarily the idea of Scalia, widely seen as the court’s staunchest conservative, being on the same side as organized labor would seem odd. But he is a long-time advocate of precedent and has often argued that employers, including public-sector ones, should be given wide latitude in setting their employment policies.
Many legal experts thought the court would overturn the Abood precedent in Harris v. Quinn, a 2014 case involving public-sector unions. But during oral arguments in that case, Scalia unexpectedly began to effectively make the union’s argument for it. He said employers should not be limited in terms of what labor contracts they could sign with unions, and that included public-sector employers.
“There are some private employers who think they’re better off with a … union and they require all the people that they hire to become a member of this union and to pay union dues for representational purposes. They do this as private employers because they think it is in their interest as an employer. Why can’t the government have the same interest?” he asked.
That and other past comments and opinions gave labor organizations hope that Scalia might lean their way in Friedrichs. Yet at several points on Monday he appeared to dash those hopes.
“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority? All of those questions are necessarily political questions. That’s the major argument made by the other side,” Scalia told Edward DuMont, the attorney representing the state of California, which sided with the union.
During another back and forth with DuMont, who argued that the current system made for better labor relations with the state, Scalia suggested that labor organizations ought to be able to get along without security fees.
“General DuMont, you are arguing that — and I sympathize with — the need of the state to have an efficient system for dealing with its employees, and I can agree that dealing with just one union makes everybody’s life easier. Why do you think that the union would not survive without these fees charged to nonmembers of the union? Federal employee unions do not charge agency fees to nonmembers, and they seem to survive; indeed, they prosper. Why is California different?” Scalia asked.
DuMont replied that he disagreed that the federal unions were thriving without the fees. He added in response to questions from other justices that he didn’t know for certain whether unions would survive without the fees but that he didn’t think the burden was on him to prove that was the case.
“You’re the one making the argument,” Scalia shot back. “It isn’t the job of the opponents to show that it, you know, that it will survive. You’re the one that’s saying we need to do this because otherwise it won’t survive. It seems to me the burden is on you to suggest why that’s so.”
Early in the arguments Scalia indicated that he was thinking that the idea of compelling somebody to back an organization, even one they would otherwise support, was problematic.
“Let’s say the national political parties are in trouble so they enact a law that says all members of the Republican Party, if you want to be a member, you have to contribute so much money. Is that OK?” he asked Michael Carvin, the plaintiff’s attorney.
Carvin quickly replied that it wasn’t. “The bedrock principle … is not whether or not you vividly oppose what [the union] is saying,” He said. Scalia offered a one-word response: “Right.”
When David Frederick, the attorney for the California Teachers Association, argued that the fees were important to the unions’ ability to effectively collectively bargain with the state, Scalia said he did not see how the total amount of money the union got made a difference.
“You have a union bargaining, and the city says no. And you’re saying that if there are enforced fees to the union, the city will say yes?” he asked.
Towards the end of the arguments, U.S. Solicitor General Donald Verrilli, also arguing on behalf of the union, appeared to try to steer the discussion back to safer waters for his side, namely that the court decided the issue in Abood almost 40 years ago and that the court therefore shouldn’t upset the status quo that decision created.
“Given the stare decisis considerations that ought to govern this court’s decision in this context that that is more than sufficient to uphold, to reaffirm Abood,” Verrilli said.
