Opinion: Trevor Burrus – Public-Sector Unions

1129

Public-Sector Unions

Recently, the Supreme Court disappointingly, but expectedly, split 4-4 in Friedrichs v. California Teachers Association. With Justice Antonin Scalia’s untimely death, one of the likely blockbusters of the term turned into a terse, one-sentence opinion: “The judgment is affirmed by an equally divided Court.”

“The judgment” was the Ninth Circuit’s decision, which sided with the unions on the question of whether forced union dues for public-sector workers violate the First Amendment. At stake in Friedrichs was whether public-sector unions would continue to be permitted, under a 1977 case called Abood v. Detroit Board of Education, to take forced dues from non-members in order to fund the day-to-day activities of the union. In an alternate universe, one in which Scalia is still alive and sitting on the Court, Friedrichs would have almost assuredly overruled or severely limited Abood, essentially converting public-sector unions into “right to work” unions.

The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death. Few issues split the Court more starkly than unions, and there were clearly irreconcilable differences among the justices.
Friedrichs was only argued on January 11, so the justices didn’t take too long to conclude that there was no way to decide the case with five justices in the majority, thus the thoroughly unsatisfying opinion today.

Prior to Friedrichs, two 5-4 decisions had limited the power and scope of public-sector unions. Friedrichs was the culmination of those two cases, Knox v. SEIU and Harris v. Quinn. Now the future of forced dues for public-sector workers is uncertain, but they are certainly safe for now.

And, unless a Republican wins the presidency in November, the Republicans in the Senate continue to block the nomination of Merrick Garland through the election, and the new president makes a good nomination to the Court, then it will be hard to bring a successful challenge again.

Unfortunately, given the polls and the craziness of this election year, it’s likely the opportunity won’t come up again any time soon. Going forward, lawyers for Friedrichs have announced that they will seek rehearing. It is unclear whether such an action will be successful (it takes five votes to get a rehearing) and, furthermore, if the justices are still irreconcilably split, then this issue cannot be resolved by this eight person court. That question, like so many others, rests on this election.

The Supreme Court heard oral argument in Friedrichs v. California Teachers Association, a challenge to public-sector unions’ ability to extract forced dues from non-members. As my colleague Ilya Shapiro writes, and Ian Millheiser at Think Progress agrees, the Court seems poised to strike down “fair share” fees for public-sector workers who do not want to join the union. This would essentially mean that “right to work” would be constitutionally mandated for public-sector workers.

Such a ruling would correct a 40-year-old mistake the Court made in Abood v. Detroit Board of Education. There, the Court ruled that public-sector union dues can be meaningfully separated into the “political” and the “non-political,” and that, while the First Amendment forbids forcing people to support political causes with which they disagree, public-sector unions can extract a “fair share” fee for non-political purposes.

From the very beginning, this distinction was under attack. As Justice Lewis Powell wrote in concurrence in Abood: Collective bargaining in the public sector is “political” in any meaningful sense of the word. This is most obvious when public-sector bargaining extends … to such matters of public policy as the educational philosophy that will inform the high school curriculum. But it is also true when public-sector bargaining focuses on such “bread and butter” issues as wages, hours, vacations, and pensions.

In other words, public-sector unions are just another political special interest that seeks favors from the government, and what they can’t get at the ballot box they’ll get at the bargaining table.

Trevor Burrus is a research fellow at the
Cato Institute’s Center for Constitutional Studies.