Courts & Crime

Public service unions face big challenge at Supreme Court

The US Supreme Court building in Washington, April 24, 2015.
The US Supreme Court building in Washington, April 24, 2015. Tish Wells

The Supreme Court on Monday will hear oral argument in a case called Friedrichs v. California Teachers Association. It’s one of the most hotly contested disputes of the court’s 2015-16 term, with serious stakes for law, politics and business.

It raises lots of questions; here are some of them.

Q: Who is Friedrichs, and what’s her complaint against the California Teachers Association?

A: Rebecca Friedrichs is a longtime elementary school teacher in Orange County. Along with San Luis Obispo County teacher Irene Zavala, Harlan Elrich, a math teacher at Sanger High School near Fresno, and others, Friedrichs objects to mandatory fees charged by a teachers association to which they do not belong.

These fees add up. In 2013, the California Teachers Association collected $173.9 million in what Friedrichs’ attorneys characterized as “dues.” California teachers say their individual fees can exceed $1,000 a year.

Q: Is money the only issue?

A: It’s more than that. The teachers say they don’t want to underwrite union activities that are contrary to their beliefs. Forcing them to pay, they say, violates their First Amendment rights; the constitutional provision that they argue empowers people both to speak and, if they choose, not to speak.

Elrich said in an interview that “a lot of money is being taken from me to support bills and candidates I don’t support.” Zavala, though allowed for religious reasons to donate her agency fee to charity, contended in a legal brief that her “charitable contributions are constrained by a collective-bargaining agreement” and added that she objects to “many of the unions’ public policy positions.”

But for California’s agency shop arrangement, Mr. Elrich would not pay fees to or otherwise subsidize the teachers’ union, and he objects to the state’s forced subsidization policy.

Brief for Fresno-area teacher Harlan Elrich and others.

Q: Is this only about teachers?

A: It just starts there. About 7.2 million public-sector employees belong to unions nationwide, and a brief led by Stanford Law School professor Pamela S. Karlan for the Peace Officers Research Association of California noted that “these members worked in diverse occupations, including library services, health care, job training and more.”

Q: Why must they pay a fee to the union if they don’t belong?

A: Because California says so, and the U.S. Supreme Court, so far, has said that’s OK.

California, like some 22 other states and the District of Columbia, authorizes agency fees for public-sector unions. The Supreme Court, in a 1977 case involving Michigan teachers called Abood v. Detroit Board of Education, ruled that fees charged by public-sector unions are consistent with the First Amendment because the nonmembers aren’t paying for political action, but for the union’s contract bargaining services.

Q: If the Supreme Court has already upheld the idea, isn’t it likely the court will rule the same way this time?

A: No.

Conservatives have long chafed under the Abood ruling, and labor unions’ antagonists have similarly dreamed of reversing it. The California Teachers Association lawsuit was itself conceived as a strategic move by attorney Terry Pell and the Center for Individual Rights, with the specific intent to get the 1977 ruling overturned.

Some Supreme Court justices, in turn, have all but invited a challenge to the Abood ruling, suggesting they are primed to throw it out. In a 2014 ruling concerning Illinois home-care workers, called Harris v. Quinn, Justice Samuel Alito opined that the Abood reasoning was “troubling” and “questionable on several grounds.” Four other justices joined him in that opinion.

“This is an aggressive, conservative court,” former acting Solicitor General Walter Dellinger said, adding that “public-sector unions have been politically important on the progressive side.”

Q: With stakes so high, what do others think?

A: Twenty-five briefs have been filed in support of Friedrichs, representing everyone from former California Gov. Pete Wilson and the National Federation of Independent Business to the attorneys general from 18 states, including Georgia, Idaho and Florida.

On the flip side, 24 briefs supporting unions and the California Teachers Association were filed, by the likes of the Obama administration and 21 states including Kentucky and Washington. A lawyer from Obama’s solicitor general’s office will participate in the hourlong argument.

Q: Is there a key swing vote?

A: Justice Anthony Kennedy, once more, is the potential pivot man.

Kennedy, or whoever writes the court’s decision, could reverse Abood outright and declare that agency fees violate the First Amendment. This would be huge. With unions already “a shadow of their former selves,” said New York University School of Law professor Cynthia Estlund, “their voice will clearly be weakened if they can’t depend on their fair-share fee.”

Less dramatically, the court could permit the fees but shift the burden. Currently, dissident workers bear the responsibility of objecting to paying the portion of union dues that goes to political activities. As an alternative, the court could instead require public-service workers to affirmatively consent to paying that portion of the fees, which could lessen collections.

Or the court might surprise many, side with the unions and entirely sustain the status quo. But don’t count on it.

“The signals all point to me that they took this case to overrule Abood,” attorney Erin E. Murphy, a former clerk to Chief Justice John Roberts Jr., told reporters at a Georgetown University Law Center preview of the court’s term last year.

Michael Doyle: 202-383-0006, @MichaelDoyle10