In a Supreme Court case that could deal a major blow to public-sector unions, organized labor is looking to one justice to swing the majority their way: Antonin Scalia.
Scalia, usually the court’s leading conservative, surprised observers last year by appearing to lean toward labor’s side during oral arguments in a similar case involving public-sector unions called Harris v. Quinn. Yet a closer look at his past writings suggests that may not have been out of character.
In Friedrichs v. California Teachers Association, which involves whether government employees can be forced to pay union “fair share” fees even if they refuse to join the union, the teachers union is betting that Scalia can be won over. Its brief in the case, filed in early November, is mainly written to appeal to him, labor law experts note.
“Reading between the lines of the brief, they are clearly going after Scalia. It’s hard to miss their intentions here,” said Steve Bernstein, a lawyer with the management-side firm Fisher & Phillips.
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The Supreme Court first said unions that represent workers in federal, state or local government could force workers to pay them “fair share” fees in a landmark 1977 case called Abood v. Detroit Board of Education. Otherwise, the court reasoned, the workers would become economic free riders on the union. But the ruling said the workers could be charged only for expenses related to collective bargaining, not for the union’s political activities.
The precedent is important to public-sector unions, which now account for half of organized labor, because it ensures a steady flow of dues money from the 7 million government workers they represent. Reversing Abood would allow non-members to stop making those payments, a major financial blow.
Legal experts thought the court would overturn Abood in Harris v. Quinn, a 2014 case focused on whether state-subsidized in-home caregivers could be unionized. But during oral arguments in the 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.
Much of the rest of the oral arguments appeared to be directed at winning over Scalia, with Justice Elena Kagan pressing the case for the liberal wing and Justice Samuel Alito trying to quell Scalia’s doubts.
While Scalia concurred with the court’s other conservatives in the majority 5-4 ruling in Harris v. Quinn, the decision was far less sweeping than was anticipated. The court ruled that the plaintiffs could not be forced to join a union, but only because they weren’t really public-sector employees in the first place. Therefore, Abood did not apply and the precedent remained. Legal observers suspect the other conservatives compromised to keep Scalia on board.
“There is a sense that there probably were four votes in Harris to overturn [Abood] and that he was the one person that maybe moved in the other direction,” said University of Richmond law professor Ann Hodges.
That kind of compromise is unlikely in the Friedrichs case, which involves public school teachers who are definitely covered by Abood and are explicitly seeking to have it overturned. The plaintiffs argue that it violates their First Amendment rights by forcing them to support an organization with whose political views they disagree.
In its brief, the California Teachers Association uses arguments made by Scalia to make its case that Abood is constitutional. It emphasizes deferring to states, the need to defer to employers’ wishes and the principle of stare decisis — letting established precedents stand — all of which are positions the conservative justice has backed. Virtually all of the cases the brief cites that were decided after Scalia joined the court are also ones in which he was in the majority. In one of the few cases that the union brief cites in which Scalia was in the minority, a 1990 decision called Rutan, it extensively cites from the dissent Scalia wrote.
The brief emphasizes a 1991 case called Lehnert v. Ferris Faculty Association in which Scalia wrote a concurring opinion that said: “A union may constitutionally compel contributions from dissenting non-members in an agency shop only for the costs of performing the union’s statutory duties as exclusive bargaining agent.”
The union is not shy about name-dropping him in the brief. A typical passage reads, “Petitioners level three other criticisms at Justice Scalia’s articulation of the constitutional basis of a fair-share system in Lehnert, but those criticisms are unpersuasive.”
Patrick Wright, an attorney with the conservative Mackinac Center, which filed an amicus brief in the case, said Lehnert is the main basis of the union’s hope that Scalia is their fifth vote.
“They’re hoping that Scalia has already tied himself to agreeing that these things are constitutionally permitted,” Wright said.
Ilya Shapiro, an attorney with the libertarian Cato Institute, which also filed an amicus brief in the case, argues that too much is being read into the justice’s comments. “I don’t read Scalia as particularly amenable to arguments that a state can choose to privilege employer or union rights over employee rights … which is the issue in Friedrichs. So the smart money is still 5-4 in favor of the petitioners here,” Shapiro said.
A union spokesman did not respond to a request for comment.
