Could Justice Scalia Save American Unions?


On Monday, the Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association, a case seeking to starve public sector unions of funds. If the plaintiffs in this case prevail, it will hand opponents of a worker’s right to organize what may be their most significant court victory in nearly a century. Yet, to achieve this victory, they may need to overcome a somewhat surprising obstacle: conservative Justice Antonin Scalia.

The Free-Rider Problem

Friedrichs involves what are alternatively called “fair share” or “agency” fees, which unions charge non-members in order to recoup the cost of services performed for those non-members. Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.


To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees. For many years, these fees have been the subject of a bitter political dispute between advocates for workers’ rights and lawmakers who are more skeptical of unions. So-called “right-to-work” laws are state statutes that prohibit unions from bargaining for an agency fee provision in a union contract. Currently, exactly half of the 50 states have such a law, but only one-quarter of unionized public sector workers live in states with right-to-work laws.

Friedrichs seeks to impose a right-to-work law on public sector unions in all 50 states, regardless of whether an individual state’s lawmakers approve of such a law. The plaintiffs’ attorneys claim that the First Amendment mandates such a right-to-work regime, under the doctrine that the government cannot compel a person to speak. Public sector unions, they reason, express a specific viewpoint on issues such as how much public workers should be paid, so workers who disagree with these viewpoints should not be compelled to subsidize the union.

One problem with this argument is that it lacks much of a limiting principle. As an amicus brief filed by several scholars notes, for example, “many state pension funds are managed by and invested in private companies” and “the corporations in which public pension plans invest may engage in political speech” that individual workers disagree with. Does that make it unconstitutional for the government to require workers to contribute to their own pensions? Or perhaps it simply forbids pension funds from investing in companies that engage in political speech, a restriction that could endanger the financial viability of the pension fund because it may be unable to put money in the soundest investments?

Enter Justice Scalia

Two years ago, during oral arguments in a very similar case, Justice Scalia raised another problem presented by the plaintiffs’ legal theory. Like Friedrichs, Harris v. Quinn asked the justices to hold that a right-to-work regime is imposed on public sector unions by the First Amendment. In response to this argument, Scalia noted that applying the First Amendment to workplace bargaining could lead to absurd results and render some employees unmanageable:

Suppose you have a policeman who — who is dissatisfied with his wages. So he makes an appointment with the commissioner, police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, I don’t — I don’t want to see this man again. Has he violated the Constitution?

The lawyer from the anti-union National Right to Work Legal Defense Foundation claimed in response that the First Amendment only comes into play if the conversation is a matter of “public concern,” and such a concern only arises “if you had an organization petitioning . . . a police district for wages across the board for police officers.”


Scalia, however, seemed unconvinced. “It seems to me it’s always a matter of public concern,” he told the lawyer, “whether you’re going to raise the salaries of policemen, whether it’s an individual policeman asking for that or — or a — a combination of policemen or a union.”

Harris ended a bit strangely. Rather than mandate right-to-work for all public sector unions everywhere, the Court handed down a relatively narrow opinion imposing right-to-work on the unusual kind of worker at issue in that case. Harris involved home health workers who were paid by the state of Illinois but that acted much like employees of the particular patient they care for. In a 5–4 opinion by Justice Samuel Alito, the Court held that agency fee agreements are unconstitutional in this particular workplace.

The big mystery after Harris is why the Court decided to stay its hand, at least to a degree, rather than hand down a sweeping nationwide victory for anti-union advocates. Justice Alito’s opinion in Harris is riddled with language attacking the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, which held that agency fee agreements are permissible in the public sector, so it is possible that the Court was merely biding its time before it delivers the killing blow in a future case like Friedrichs. It’s also possible, however, that the Court stayed its hand because it was unable to garner five votes to hand anti-union advocates a total victory. Scalia may have balked.

If Scalia ultimately votes with the plaintiffs in Friedrichs, he also risks opening himself up to questions about his partiality. In 1990, Scalia voted to uphold a law that engaged in far more direct coercion of political orthodoxy than an agency fee agreement. This case, however, did not involve a union. It involved the Republican Party.

Rutan v. Republican Party of Illinois arose out of a complex scheme by Illinois’s then-Governor James Thompson that allegedly made hiring and promotion decisions based on “whether the applicant voted in Republican primaries in past election years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels.”

Though a majority of the Court said that such a practice violates the First Amendment, Scalia disagreed. “The restrictions that the Constitution places upon the government in its capacity as lawmaker,” he wrote in dissent, “are not the same as the restrictions that it places upon the government in its capacity as employer.”


As Harvard Law Professor Benjamin Sachs notes, squaring Scalia’s belief that the government may “require its employees to support a particular political party” with the proposition that “the government may not require its employees to support union collective bargaining would be difficult.”