Supreme Court justices at work, bashing unions
Supreme Court Justice Samuel Alito is pursuing a vendetta against organized labor. As the point man for all things anti-union in the court's jurisprudence, Alito next will target teachers' unions in California. If he can persuade Justice Antonin Scalia to join the cabal along with Chief Justice John Roberts and Justices Anthony Kennedy and Clarence Thomas, he can play the constitutional trump card against compulsory union dues in the public sector.
Alito galloped down this road in Knox v. Service Employees International Union, Local 1000 andHarris v. Quinn. His strategy in those cases was to charge headlong off the reservation, throwing precedent to the wind, then recovering briefly to reach a narrow holding acceptable to his cronies. This time, Alito may take the posse along with him for the ride.The plaintiffs in the teachers' case, Friedrichs v. California Teachers Association, argue that public-sector unions are by nature politicized entities, and that compulsory payment of any dues in states that allow union security is a violation of the objectors' constitutional rights. The controlling legal rule dates back to the Abood v. Detroit Board of Education decision in 1977 that upheld the right of a union to collect an agency fee from non-members for collective bargaining activities if the contract provided for union security.
The political dimension of public unions is hardly a new idea. In 1969, two prominent academics published a study in the Yale Law Journal pointing out that the social costs of public sector bargaining "are on the whole political." Despite that, public-sector unionization escalated rapidly in the 1970s and was widely accepted by government entities, including the payment of mandatory dues in many instances.
Abood remains the law despite Alito's efforts to undermine it in the two earlier cases. In Knox, Alito got enough analytical bite to take a chunk out of unions' capacity for collecting dues by holding that agency fee payers did not have to opt out of paying full dues; instead, unions could only collect the total amount of dues if employees opted in.
How will Friedrichs turn out? Some commentators argue that Scalia will be the deciding vote, and because he upheld compulsory dues payments in the 1991 decision in Lehnert v. Ferris Faculty Association, he will do so again. What Scalia actually said in his concurring opinion in Lehnert is Supreme Court justices at work, bashing unions | TheHill:
