by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
*This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.
On Tuesday, March 29, 2016, the impact of Justice Antonin Scalia’s death was apparent when the Supreme Court, by a 4-4 tie, gave public employees unions a huge victory. For decades, foes of unions have wanted the Supreme Court to declare unconstitutional the requirement that non-union members must pay their share of the union dues that go to support the collective bargaining activities of the union. After Friedrichs v. California Teachers Association was argued on January 11, it seemed certain that there were five votes against the unions. But Justice Scalia’s death on February 13 occurred before the Court released its opinion and the Court was left deadlocked 4-4.
In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the Court held that non-union members can be required to pay the share of the union dues that support the collective bargaining activities of the union. Non-union members benefit from the union in terms of their wages, their hours, and their working conditions. The Court explained that they should not be able to be free riders and benefit without paying their “fair share.” But the Court held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree. Both government entities and unions have relied on this for decades in entering into thousands of contracts governing the workplace.
In recent years, the five most conservative justices on the Court – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito – have limited Abood and indicated a likely desire to overrule it. For example, in Harris v. Quinn, in 2014, Justice Alito, writing for these five justices, referred to Abood as an “anomaly” and inconsistent with the First Amendment. The Court did not go so far as to overrule Abood, but certainly suggested that the majority would be willing to do so in a case that directly presented that issue to the justices.
Friedrichs v. California Teachers Association was filed in federal district court in Orange County, California with the goal of it being a vehicle for the Supreme Court to overrule Abood and hold that non-union members do not have to pay their “fair share” of the union dues that go to support collective bargaining. The federal district court and the federal court of appeals obviously cannot overrule a Supreme Court precedent and dismissed the lawsuit. But the Supreme Court granted review on the question of whether it should overrule Abood and the many decisions based on it.