Argument analysis: The question not asked : SCOTUSblog:
Argument analysis: The question not asked
Arguments in Friedrichs v. California Teachers Association. Michael Carvin at lectern for petitioners. (Art Lien)
Early in the argument, a Washington, D.C., lawyer, Michael A. Carvin, made clear the basic complaint of the non-union California teachers he represents when he told the Court that the teachers don’t want to be forced to pay any support to “an outside advocacy group like a political party or like a union.” It was not a slip of the tongue, yet no one challenged whether the two actually were equivalent political entities.
What may have been most revealing is that the five Justices whose votes are likely to control the outcome showed no sign of doubting the non-union members’ premises, so most or all of those five would appear to be inclined to conclude that any charge of an “agency fee” to a non-member would be a compelled endorsement, with their money, of “a group that advocates an ideological viewpoint” (as Carvin also described the teachers’ union).
Those are the Justices who made up the majority in a five-to-four ruling in 2014, Harris v. Quinn, that stopped just short of inviting the kind of First Amendment challenge that Carvin brought to the Court Wednesday, after rushing it through lower courts as a test case on whether the Court was ready to overrule its 1977 decision in Abood v. Detroit Board of Education. That is the precedent which established the legality of an “agency fee” to be levied by public-sector unions on non-union members to support collective bargaining.
The four Justices who were in dissent in the Harris case appeared to be headed toward dissent again, even as they made no headway in shaking Carvin’s assault on the teachers’ union as a state-compelled advocate for workplace policies that the non-union members appear to find objectionable. Those four appeared to be clinging to the Court’s usual reluctance to overturn a constitutional precedent that had been followed for nearly four decades.
The more liberal Justices gained a measure of support from Justice Anthony M. Kennedy, as they wondered what would be the fate of “agency fees” that now exist in thousands of union contracts affecting millions of workers, if the Court were to overrule the Abood decision. The liberals seemed unpersuaded by Carvin’s suggestion that such fees outside the public sector were not in jeopardy.
For nearly forty years, it has been settled that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for other costs that the union incurs – for example, for collective bargaining. After over an hour of oral arguments today, public-employee unions are likely very nervous, as the Court’s more conservative Justices appeared ready to overrule the Court’s 1977 decision in
Abood v. Detroit Board of Education and strike down the fees. Let’s talk about
Friedrichs v. California Teachers Association in Plain English.
The most telling sign that lead plaintiff Rebecca Friedrichs and her fellow teachers are likely to prevail may have actually come from the Court’s four more liberal Justices, who spent relatively little time on the main legal issue before the Court – that is, whether requiring non-members to pay the fee violates the First Amendment. Instead, many of their questions centered on whether, even if Friedrichs has a stronger legal argument, the Court should still rule against her based on a legal doctrine known as “stare decisis” – which counsels that the Court should not overturn its prior rulings unless there is a particularly compelling reason to do so. This suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win. And so they shifted gears, trying to salvage a victory by convincing at least one of their colleagues that it would, as a matter of principle, be a bad idea to overrule the decision in Abood.
Justice Elena Kagan led the charge, telling Michael Carvin – who argued on behalf of Friedrichs – that public-employee unions have entered “tens of thousands of contracts,” governing “millions of employees, maybe as high as 10 million employees,” that would be disrupted if the Court were to overturn Abood. Therefore, she asked Carvin, “what special justification are you offering here” to do so? When Carvin answered that “the right of the citizen not to be subjected to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis,” Kagan shot back, clearly unconvinced: “Your answer is essentially you don’t need a special justification if” the first decision denied a constitutional right? Justice Ruth Bader Ginsburg chimed in, asking whether employees who don’t join a union would ask for their fees back if Friedrichs wins and suggesting to Carvin that, if the Court overrules Abood, other cases that rely on it would also fall, with far-reaching effects.
In at least a brief flicker of hope for the unions, Justice Anthony Kennedy also seemed to express some concern, telling Carvin that, if they were to “assume that stare decisis is an important consideration for the Court,” what happens to the “many contracts, perhaps thousands of contracts?” Carvin stood his ground, telling Kennedy that the extent to which unions and governments may have relied on the Court’s decision in Abood is irrelevant.
Justice Stephen Breyer made an even broader appeal, focused on the effect that reversing course on the union fees would have on the public’s view of the Court, that may have been directed not only at Kennedy but also at Chief Justice John Roberts, who cares very much about the Court’s legitimacy. Noting that the Court’s ruling in
Abood has worked “reasonably well,” Breyer asked Carvin to explain, “from the point of view of this Court’s role in society,” when “you start overruling things,” “what happen to the country thinking of us as a kind of stability . . . in a world that is tough because it changes a lot?” “It’s a matter of considerable concern,” Breyer emphasized. Breyer acknowledged that some decisions should be overturned – for example, the Court’s 1896 decision in
Plessy v. Ferguson, which upheld laws mandating racial segregation under the “separate but equal” doctrine. That decision, Breyer reasoned, “certainly should have been overruled” “because it was a right to treat people equally.” But, Breyer told Carvin, “I can’t find a basic principle here that’s erroneous.”
Questions from the Court’s more conservative Justices confirmed that the more liberal Justices had good reason to be concerned that Friedrichs had the advantage on the merits, as the more conservative Justices displayed skepticism about virtually all of the major arguments proffered in support of the union fees. Arguing on behalf of California, which supported the union, California Solicitor General Edward DuMont emphasized the long history of labor unrest in California in the 1960s, which prompted the state to adopt the current system of unions and fees. California has a critical interest in managing government workplaces, DuMont told the Justices, and it needs to be able to deal with a single union that employees also perceive as adequately representing their interests. The fees at issue in this case serve an important interest in ensuring that such a representative exists, he argued, by providing sufficient and stable funding for the union.
Justice Antonin Scalia voiced sympathy for the state’s need to run its workplaces smoothly, but he was nonetheless dubious about both the need to charge non-members a fee and the consequences if the Court were to strike down the fees. Scalia asked DuMont to explain why public-employee unions would not survive when unions representing federal employees don’t charge non-members similar fees but nonetheless “prosper,” in Scalia’s words. Michael Carvin returned to this point during his rebuttal, reminding the Justices that, in addition to the federal government, twenty-five states already prohibit such fees and were “all fine.”
And Justice Anthony Kennedy downplayed what the union characterizes as a “free rider” problem – the idea that a public employee who declines to join the union that represents him benefits from the union’s work on his behalf without having to pay for it. He told DuMont that “many teachers
Union fees in jeopardy: In Plain English
