WASHINGTON, DC — Let’s not beat around the bush.
Public sector unions just had a simply terrible day in the Supreme Court on Monday. Justice Antonin Scalia, the justice who seemed most inclined to agree with them prior to oral argument, took a hard turn against them within just a few minutes of argument. Justice Anthony Kennedy, who is normally this closest thing this Court has to a swing voter, appeared to grow increasingly angry with the unions as the argument proceeded. Plus the Supreme Court has already dropped two big hints that it’s ready to cut of a major source of funding for public sector unions. Oral arguments cannot always predict the outcome of the case — just ask the millions of Americans who are now insured because of Obamacare — but if they offer any predictive value, a lot of unions are very frightened right now.
Friedrichs v. California Teachers Association involves what are alternatively referred to as “agency fees” or “fair share fees,” which unions charge non-members to recoup the cost of services performed for those non-members. As ThinkProgress previously explained,
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.
In essence, these fees exist to ensure that non-members do not get something for nothing. Instead, they require the non-members to pay their share of the costs of obtaining the benefits of unionization.
The plaintiffs in Friedrichs argue that such fees violate the First Amendment, at least with respect to public sector unions. As a general rule, the First Amendment does not permit the government to compel someone to say something they disagree with, and the plaintiffs claim that requiring non-union members to subsidize collective bargaining by a union that they may not agree with essentially rises to the level of compelled speech.
Were this a case where the government actually required private citizens to subsidize the union’s bargaining, the plaintiffs may have a point. The First Amendment is strongest when government uses its power as “sovereign” to compel individual action. It is much weaker, however, when the government only seeks to manage its own employees. As Justice Kennedy explained in his opinion for the Court in Garcetti v. Ceballos, “government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”
Yet, whatever force Kennedy’s words may have in the abstract, it quickly becomes clear during oral arguments in Friedrich that they have not convinced Justice Kennedy. Shortly after Edward DuMont, the Solicitor General of California who is one of three attorneys arguing in favor of agency fees, takes the podium, Kennedy launches into a monologue about how many teachers disagree with the position taken by their union. When David Frederick, another lawyer defending the fees, points to Kennedy’s opinion in Garcetti, Kennedy appears to grow angry at the suggestion that his prior opinion controls this case. In perhaps the most ominous sign for unions, Kennedy also drops the words “compelling interest” in a brief quip about what the state must demonstrate in order to justify entering into an agreement that provides for agency fees.
Those two words are one prong of a test known as “strict scrutiny,” the most skeptical test the Supreme Court applies under the Constitution. When a justice tells you that you have a burden to demonstrate a compelling interest, they are typically telling you that you should lose your case.
Before Monday’s argument, unions had some hope that conservative Justice Scalia might cross over and give them the fifth vote they need to preserve agency fee agreements (all four of the Court’s more liberal members appeared all but certain to vote to uphold such agreements). During oral arguments on the Court’s 2014 decision in Harris v. Quinn, a closely related case that expressed deep skepticism of agency fees, Scalia asked some questions which suggested that he was concerned that the legal argument against agency fees goes too far. That Justice Scalia, however, did not show up in Court on Monday. The one that did show up compared agency fee agreements to a law compelling people to subsidize the Republican Party.
Lest there be any doubt, Chief Justice John Roberts and Justice Samuel Alito also appeared firmly against agency fees. At one point, Roberts suggested that any bargaining position taken by a union that would cost the state any money at all is a matter of public concern subject to rigid First Amendment review. Justice Clarence Thomas was, as usual, silent. Although it is very unlikely that the Court’s most conservative member will side with the unions.
That leaves the plaintiffs with what appear to be five clear votes giving them the right to get something for nothing.