In addition to being the final arbiter of cases raising questions of federal law, the United States Supreme Court is sometimes asked to stay the scheduled execution of death row inmates. With the unexpected passing of Justice Antonin Scalia on February 13th, the Court may have granted a stay of of execution to labor unions representing government employees.
On January 11, 2016, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association. At issue in Friedrichs was whether unions can collect so-called “agency fees” (or “fair share” fees) from workers who don’t want to pay for their union’s political activities. The plaintiff, Rebecca Friedrichs, is a school teacher in California who argued that being forced to pay for the union’s political activities violates her First Amendment right to free speech.
In its 1977 Abood v. Detroit Board of Education decision, the Court held that public employees could be required to pay for union expenses related to collective bargaining, but not those which are purely political. The Friedrichs plaintiffs were seeking to have the Court overrule Abood, arguing that when unions represent public employees, all collective bargaining activities are inherently political. As Justice Scalia posited at oral argument, under this view, the questions of whether government should pay higher wages, or use seniority in making teacher promotion decisions, are necessarily political questions. Therefore, argued the plaintiffs, requiring public employees to pay even agency fees effectively forced them to support an organization whose political views they may not agree with.
A second issue in Freidrichs is whether the First Amendment requires that public employees affirmatively object or affirmatively consent to subsidizing non-chargeable speech by public sector unions. If they do not object, they become members by default. The plaintiffs argued that the law should be changed so they have to opt in every year, instead of opting out. A similar change in Wisconsin’s collective bargaining law led to a more than 50% decline in membership over the last five years in the Wisconsin Education Association Council, which is the state’s largest grade school teachers union.
While it can be difficult to predict how justices will vote in any one case, most Supreme Court observers were forecasting that the would Court rule 5-4 against the union. Had that been the outcome, it would have dealt a devastating blow to public sector unions, which rely heavily on agency fees. However, with Justice Scalia’s passing, it now seems likely the Court will deadlock 4-4, with the “conservative” justices (Roberts, Thomas, Alito, and Kennedy) voting to strike down agency fees, and the four”liberal” justices (Breyer, Ginsburg, Kagan, and Sotomayor) voting to stand by the Court’s 40-year old Abood precedent. Unless one of the more liberal justices has a change of heart, the lower court’s decision in this case will stand, meaning that public sector unions can continue to require members to pay fair share fees and affirmatively opt-out each year.
In all likelihood, this issue will resurface at the Court in another year or two. How it is is decided will most likely be determined by the outcome of this fall’s Presidential election, as the next President will probably end up appointing Scalia’s replacement.
Finally, a brief thought on Justice Scalia’s death. When I was student at the University of Virginia School of Law in 1986, then D.C. Circuit Judge Scalia taught Constitutional Law (I’ll never forget our Libel Show, where classmates sang “Scalia” to the tune of West Side Story’s “Maria”). Friends of mine who took Judge Scalia’s class described him as a brilliant but incredibly demanding (and sharp-witted) professor – characteristics he displayed in his nearly 30 years on the Supreme Court. While one may not always agree with Justice Scalia’s opinions, his enormous contributions to our nation’s jurisprudence will stand for decades. Rest in peace, Justice Scalia.