February 17, 2016
By Steven Wishnia
Washington, DC – The death of Supreme Court Justice Antonin Scalia Feb. 13 will almost certainly prevent the Court from delivering a serious blow to the American labor movement.
It means that there is no longer a five-vote majority to rule against public-employee unions in the Friedrichs v. California Teachers Association case. When the case was argued in January. Scalia and the Court’s three other right-wing justices, plus swing vote Anthony Kennedy, appeared ready to hold that public workers should not have to pay “fair-share” fees to the unions that represent them, on the grounds that any issue public unions bargain on is inherently “political,” so requiring nonmembers to contribute anything is unconstitutional “compelled speech.”
A 4–4 tie would sustain the current law, that workers in a union shop can opt out of the portion of dues that goes to explicitly political activities, but can be required to pay partial fees to cover bargaining costs. In the January oral arguments, the Court’s four more liberal Justices all indicated they would not overrule the 1977 decision, Abood v. Detroit Board of Education, that established that precedent.
Scalia had supported the Abood precedent in a 1991 case, when he wrote that nonunion workers in a bargaining unit are in some respects “free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.” But by 2014, he had changed his mind. In the Harris v. Quinn case, he cosigned Justice Samuel Alito’s majority opinion, which called Abood “questionable on several grounds” and argued that because public employees’ pay comes from government, bargaining for a raise is political activity. In January, he contended that rather than workers who refuse to pay for representation being “free riders,” teachers who disagree with union positions on tenure and merit pay are “compelled riders.”
His death derails the legal strategy used by the Friedrichs plaintiffs, a group of California teachers backed by most of the nation’s main anti-union politicians and policy groups. The Center for Individual Rights, the legal group representing them, deliberately asked the federal district and appeals courts to rule against them. Knowing that lower courts would be obliged to follow Abood, they were trying to speed the case to the Supreme Court.
Senate Republican leaders quickly insisted that they would refuse to confirm any new Justice nominated by President Barack Obama. Judiciary Committee member Mike Lee (R-Utah) told the New York Times that the panel would probably not even hold hearings on any nominee. Even if they can keep the seat vacant until after the November election, a tie in the Friedrichs case would still preserve the union shop for public workers, as it would sustain the Ninth Circuit Court of Appeals’ November 2014 ruling that dismissed the suit.
That would relieve U.S. union leaders, who have been extremely pessimistic about their prospects in the Court. The New York City Central Labor Council has been holding meetings to plan how it would deal with an unfavorable result, and the New York State United Teachers has been planning a recruitment drive to solidify membership before the decision comes down.