The Supreme Court heard oral arguments in Friedrichs v. California Teachers’ Association last Monday, and the union had a tough day.  Legal Insurrection previewed the case, here.

Background

In brief, public school teachers in California seek to invalidate state law requiring that non-union members must nevertheless pay the public teachers union fees for collective bargaining and related expenses.  Those related expenses are fairly broad and include public relations campaigns on issues to be collectively bargained.

Before this case, controlling law from Abood v. Detroit Board of Education allowed such compelled payments on the reasoning that collective bargaining is not political speech, so compelled contributions to collective bargaining expenses does not run afoul of the First Amendment’s implied freedom of (and from) association.  However, Abood was internally inconsistent to the extent that it acknowledged that everything a public union does is political in the sense that it has an impact on the public and public policy.

There were indications before oral argument that the union faced an uphill battle, notably the decision in Harris v. Quinn two years ago, in which the Court intimated that Abood was on shakey ground.  In Harris, home health care workers were treated as state employees under state law and compelled to contribute to the Services Workers International Union’s (SEIU) collective bargaining with the state.

The Harris Court struck the underlying statute as unconstitutional and, according to Dr. John Eastman of Chapman University’s Fowler School of Law and the Claremont Institute’s Center for Constitutional Jurisprudence, “the Court hammered another big nail in the coffin of Abood, calling its ‘analysis questionable on several grounds,’ including some that “have become more evident or troubling in the years since” Abood was decided.”

Friedrichs is especially important because Plaintiffs are not arguing that they should be treated differently then the Abood plaintiffs, or otherwise trying to carve out an exception to the existing rule allowing compelled fees for collective bargaining.  The courts are always looking for exceptions and nuances that mean new cases do not quite fit into existing decisional law, and so should be treated differently.

Overturning existing law altogether is much more difficult under the related principles of stare decisis and deference to precedent.  But that’s what the Friedrichs Plaintiffs are looking for, and if they succeed the new rule – banning compelled contributions to any public union activity at all –  would apply to every public union in the United States.

Despite the aggressive stance, I expected a victory for the Plaintiffs.

Oral Argument

In the event, last week’s oral arguments were a disaster for the unions.

The tone of the Court’s questions to the Union and the dissident teachers was remarkable.  Questioning the teachers, the Justices spent most of their time asking about the implications and the breadth of overruling Abood and the burden that must be met to do so.

Justice Ginsburg asked the first question of the session, possibly indicating much more serious problems for public unions: “is it permissible, in your view, to allow the union to be the exclusive representative so that nobody else is at the bargaining table?”  Justice Kennedy asked, “[i]f you were to prevail what would happen with private employers in a State which said that there should be an — a union shop?”

Justice Kennedy asked whether “a State statute which allows an agency shop or. . . a closed shop, that is State participation in the very kind of coerced membership and coerced speech that you’re objecting too[?]”  Justice Ginsburg followed up, asking about the Railway Labor Act, which allows closed union shops under Federal law.

On a more practical level, Justices Kennedy, Kagan and Sotomayor asked what would happen to existing public union contracts, whether unions would be disadvantaged by suddenly having a source of revenue cut off.

Plaintiffs’ counsel wisely avoided asking for too much.  He is litigating a specific case in which teachers were compelled by law to contribute to their public union, and asking for anything more than undoing that narrow rule might endanger his clients’ position.

But the Justices are thinking about much larger issues.  They are focused on the viability of other similar rules in the private sector, under state law, and the implications for existing contracts.  This all implies that they already agree with the substance of Plaintiffs’ position, and are merely looking for the best way to reverse Abood with the least possible disruption.

Plaintiffs’ one concern should be the Justices’ questioning about the burden of reversing precedent.  Justice Kagan framed the burden issue: “This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect millions of employees, maybe as high as 10 million employees. So what special justification are you offering here [for overturning Abood]?”

Justice Kennedy asked: “so collective bargaining in ­. . .this instance. . . includes this wide­-ranging effort on the part of the union to have a public relations campaign in favor of principles that some of its members ­­ – that some teachers strongly object to[?]”

And Justice Breyer added:

the concerns. . . I have in terms of workability are not so much the details. I guess something would work out in the labor area. It would certainly affect the bar. It would certainly affect the integrated bar. It would certainly affect at least student fees at universities. It would require overruling a host of other cases, I think, at least two or three that I can find, and that’s quite a big deal. . .

[W]hat is it, in your mind, 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 ­­ not perfectly.

Plaintiff’s counsel handled these substantive questions well, saying that overturning Abood was less disruptive then upholding it, because the principle that compelled donations to inherently political activity (public union collective bargaining) has no First Amendment implications is untenable.

The Court’s questions to the three parties (the State of California, the union itself and the United States) defending compelled contributions to the union were far more critical.  Justice Kennedy noted:

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?

And you­­ the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.

Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it­­ correct me if I’m wrong­­ agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.

Justice Kennedy asked, “­­ do unions have public relations programs of ­­ or newspaper articles, media programs to talk about things like merit pay, protecting underperforming teachers and so forth? Do the unions actually make and aren’t those [treated as collective bargaining expenses that can be compelled from non-members]?”

After acknowledging that some of that activity was in fact chargeable to non-members, California’s Solicitor conceded the possibility that there might be “a need to adjust the current law because the Court feels that some of those things are more in political or legislative sphere than they are in the ­­ the collective bargaining sphere per se.”  That is not a good thing for the Union’s advocate to feel he must concede, and it only got worse.

After further probing questions from Justice Scalia and Justice Roberts, California’s Solicitor said “I don’t want to dispute the fact that many. . . that there are deep public policy implications to many of the topics and to the general tenor of public employee bargaining.”

The union’s attorney started better, but fell into a trap of his own making.  The union argued that cities and states preferred the “agency model” (compelled contributions) because it enabled them to negotiate with a single, united workforce to resolve disputes.  Justice Roberts turned the issue around on him:

It sounds to me like your argument cuts exactly the opposite way.  The. . . problem that’s before us is whether or not individuals can be compelled to support political views that they disagree with.  And you’re saying, well, the reason they should be able to, because if they do, then those political views are going to prevail.  They are opposed to particular funding.  That’s why they don’t want to join the. . .union, because the union is pushing that.  But you say you should force them because then the union will prevail, contrary to the objecting employee’s views.

This is not good for the union and its defenders.

The union’s defenders made some valid points, but they did not reach the central issues and did not seem to stick.  The best point was a technical issue – that the factual record in this case was inadequate because it was brought as a facial challenge to the law requiring non-member contributions.  But the teachers’ counsel negated the position by noting the union’s own prior acquiescence in the same litigation that it did not oppose entry of judgment before developing a factual record.

The teachers seem to have at least five votes and likely seven.  Depending how the decision is written the Court could even reach a unanimous decision holding that compelled contributions to public unions are unconstitutional.