Next Monday, the Supreme Court will gavel in its newest term and the justices will take the bench for the first time since last June, when the conservative Roberts Court handed down a string of uncharacteristically liberal decisions. This term, however, liberals will need to swim upstream, with the justices poised to consider a number of issues — unions, voting rights, race, and abortion — where the members of the Court’s conservative bloc have not often show a penchant of heterodoxy.
One of the most contentious political issues faced by state lawmakers are misleadingly named “right to work” laws, which starve unions of funding by preventing them from collecting dues from many of the workers that benefit from the union’s services. At the end of this term, however, five members of the Supreme Court may effectively impose a “right to work” law on every single public-sector union in the country. If they do so, it could potentially be a crushing blow to unionized workers and to the unions that represent them.
The issue in Friedrichs v. California Teachers Association are fees — alternatively referred to as “fair share” fees or “agency fees” — which require all workers who benefit from collective bargaining to pay a share of the costs of that bargaining.
Unions typically deliver significant benefits to workers — on average, workers in unionized shops receive a nearly 12 percent wage premium. Yet unions are also generally required to bargain on behalf of every worker in a unionized shop, regardless of whether each individual worker joins the union. This potentially creates a free-rider problem, for if workers receive the benefits of being in a union regardless of whether or not they actually join the union, they have little incentive to become union members and to help pay for the union’s activities. Eventually, the union is likely to be starved for funds and the workers could all lose the benefits they gained from being unionized in the first place.
Agency fees solve this problem by requiring all workers who do not join their union to pay their share of the costs of collective bargaining — costs that can be significant because they may require lawyers and other professional services. Friedrichs, however, asks the Court to invalidate these agency fees for all public sector unions. Worse, for workers in the public sector, the Court has twice indicated in recent cases that it was on the verge of doing so.
Indeed, many Court-watchers believed that the justices would declare right-to-work laws mandatory in public sector unions in 2014’s Harris v. Quinn. At oral argument in that case, however, Justice Antonin Scalia expressed concerns that the plaintiffs’ legal theory, which seeks to subject workplace bargaining to First Amendment scrutiny, could create serious problems for government managers. In the end, Harris wound up imposing a right-to-work regime on home health care workers, but it left the rest of the public sector workforce unscathed.
The biggest question in Friedrichs, in other words, is whether the Court’s relatively modest holding in Harris is a sign that at least one of the Court’s conservatives does not want to go as far as the Friedrichs plaintiffs wish to take them, or whether these justices simply decided that it would be best to make a radical shift in America’s labor and First Amendment law incrementally through several decisions. In any event, it appears that the best hope of many unionized workers is Justice Scalia. That’s never a happy position for a worker to find themselves in.
Free House Seats For White People
One unavoidable undercurrent in Friedrichs is that, should the five Republican members of the Supreme Court side with the plaintiffs in this case, they will work considerable mischief upon the Democratic Party’s infrastructure. Unions have long been major players in the Democratic coalition, and weaker unions make it more likely that the next slate of Supreme Court justices will be appointed by a Republican.
A similar current energizes another case, Evenwel v. Abbott, which seeks to shift congressional representation away from communities with large numbers of immigrants.
Evenwel concerns the interaction of two separate constitutional doctrines. The first is the “one person, one vote” doctrine, which requires states to draw legislative districts that have roughly equal population. The second is a provision of the Fourteenth Amendment concerning allocation of U.S. House seats, which provides that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” The key words in this provision are “whole number of persons,” which requires non-citizens to all be counted in determining how many House members a state receives, even though these individuals cannot vote.
So Texas, which has a significant number of largely Latino non-citizens, receives extra representation in the House for these non-citizens, even though they cannot vote.
When Texas drew its district lines, it complied with one person, one vote by drawing districts that had roughly equal population — even though this meant that some of those districts (typically, the ones with fewer non-citizens) have more voters than others. The plaintiffs in Evenwel want the Supreme Court to require states to draw districts with equal numbers of voters, instead of residents — so non-citizens will no longer count for purposes determining district populations. As a practical matter, this would shift representation away from Democratic-leaning communities with large numbers of Latinos to other communities that are more likely to support Republicans.
If the Evenwel plaintiffs prevail, in other words, Texas will continue to get extra seats in Congress for its large non-citizen population, but white Republicans will play a disproportionate role in selecting who occupies those seats.
Normally, the fact that the justices decided to take a case such as this one would be an ominous sign that at least four of them want to make significant changes to the law — in most cases, four justices have to agree to hear the case or the lower court’s decision stands. This case, however, came up through the Court’s mandatory jurisdiction, meaning that the Court had to at least give it cursory review. The fact that Evenwel will instead receive a full hearing, however, is not necessarily a sign that a significant faction within the Court is eager to use this case to shift power towards white voters.
One of the biggest surprises of Chief Justice John Roberts’ tenure is that the Court he leads has not struck down affirmative action on his watch. Prior to Roberts’ and the archconservative Justice Samuel Alito’s ascension to the Supreme Court, the Court permitted race to be used for limited purposes in university admissions in the 2003 decision Grutter v. Bollinger. Justice Sandra Day O’Connor, who was replaced by Alito, wrote the Court’s 5-4 decision.
Notably, Justice Anthony Kennedy, the Roberts Court’s sometime swing vote on issues of race, dissented in Grutter. Emphasizing that race conscious admissions programs must be subject to the highest level of constitutional scrutiny, Kennedy warned that “preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”
When Fisher v. University of Texas first reached the Supreme Court in 2012, most observers expected the Court’s new majority to strike down the Texas admissions program — which closely resembles the program upheld in Grutter — at issue in that case. Instead, the Court’s first Fisher opinion reemphasized Kennedy’s concern that racial affirmative action programs are subject to the highest level of constitutional scrutiny, and returned the case to the conservative United States Court of Appeals for the Fifth Circuit to reconsider Texas’s program.
A year later, the Texas admissions program dodged another bullet when it was upheld again by a divided Fifth Circuit panel.
Now, however, the Fisher case is before the justices again. The question this time around is whether one or more members of the Court’s conservative bloc flinched the first time because they have a lasting concern about striking down this particular program, or whether they simply expected the Fifth Circuit to do so for them. If the later is true, expect them to take matters into their own hands.
The End of Roe?
Looming over the entire term are at least two major reproductive health cases that the justices are very likely to agree to hear, even though they have not yet done so. The first case asks whether states can enact sweeping restrictions on abortion so long as they dress them up as sham health laws that appear, on the surface, to do something to protect women’s health. The second is a follow up to Hobby Lobby which asks whether religious objectors can refuse to comply with rules promoting birth control access that literally requires them to do nothing more than fill out a form asking for an exemption from the law.
Both of these cases are discussed at greater length, in addition to another major reproductive rights case that the Court could potentially agree to hear, at this link.