Supreme Court Tone Appears to Favor Ending Agency Fees to Unions

A group of California teachers fighting mandatory union fees at the U.S. Supreme Court had, by all appearances, a good day Monday.

Supreme Court justices seemed receptive to the arguments brought by teachers in the Friedrichs v. California Teachers Association case. If the case is successful, Rebecca Friedrichs and other government workers across the nation will gain the ability to opt out of agency fees unions charge to nonmembers.

Remarks from several of the justices indicated they agree with Friedrichs on a central point, that public sector union negotiations are inherently political because they involve taxpayer money, public employees, and government services. This fact makes collective bargaining in government workplaces different from its counterpart in the private sector.

This is crucial to the Friedrichs case because the First Amendment protects against compelled political speech, and the CTA — like many public sector unions — takes mandatory agency fees from nonmembers to cover its collective bargaining costs.

“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Justice Antonin Scalia said.

“When you are dealing with a governmental agency, many critical points are matters of public concern,” Justice Anthony Kennedy said, adding, “The union basically is making these teachers compelled riders for issues on which they strongly disagree.”

Regarding union negotiations on teachers pay, Chief Justice John Roberts said, “the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

Kennedy, Roberts, and Scalia are considered the swing votes in the case. Justice Samuel Alito and Justice Clarence Thomas are widely expected to rule in favor of letting teachers and other public employees decline union membership without being forced to pay agency fees.

Patrick Wright, the vice president for legal affairs at the Mackinac Center for Public Policy, attended oral arguments and said the justices’ comments were a good sign for Friedrichs and her fellow petitioners.

“The court seemed quite receptive to the argument that agency fees subsidize speech that many public employees strongly disagree with, thereby converting them into compelled riders,” Wright said.

The biggest surprise, he said, was Kennedy’s skepticism of agency fees in the public sector.

“If the tone of oral argument translates to votes, it seems likely that there are five votes to find that compelling subsidization of union speech through the use of agency fees will be declared unconstitutional,” Wright added.

California Solicitor General Edward DuMont, speaking against the teachers seeking an end to agency fees, made little effort to dispute the notion public sector collective bargaining is political.

Under questioning from Roberts, DuMont conceded that “there are deep public policy implications to many of the topics and to the general tenor of public employee bargaining.”

DuMont argued primarily in defense of exclusive representation in the public sector, which means a bargaining unit in a government workplace can be represented by no more than one labor union. A win for Friedrichs would not affect exclusive representation.

DuMont, union attorney David Frederick, and Obama administration Solicitor General Donald Verrilli said government employers support agency fees, and asked the court to stand by the 1977 Abood v. Detroit Board of Education decision allowing mandatory union fees in the public sector.

States, Frederick said, “can make rational and reasonable judgments that for their workability of a system, they can have an agency-fee process.”

“Overruling Abood now would substantially disrupt established First Amendment doctrine and labor management systems in nearly half the country,” Frederick warned.

Ending agency fees in the public sector, Verrilli said, would “disrupt those long-term relationships that have developed over time” between government employers, employees, and unions.

DuMont, Frederick, and Verrilli defended the Abood precedent with help from Justice Sonia Sotomayor, Justice Elena Kagan, and — to a lesser extent — Justice Ruth Bader Ginsburg and Justice Stephen Breyer.

Kagan emphasized her concern that ending agency fees could disrupt “tens of thousands of contracts," particularly their provisions concerning agency fees.

Calling mandatory fees from nonmembers “bargained for benefits” in existing contracts, Kagan continued, “the unions would have gotten different things if that provision had not been there.”

After insisting the California Teachers Association is a government entity under state law, Sotomayor wondered aloud if the government itself could fund public employee unions in the absence of agency fees.

Michael Carvin, attorney for the Friedrichs petitioners, argued that concerns over existing contracts were not a reason to stick with the Abood precedent because “Abood erroneously denies a fundamental right."

A decision in the case is expected in June; until then, even the most informed observer can only speculate as to how each justice will rule.

The Mackinac Center for Public Policy has filed two amicus briefs on this case in support of Friedrichs.