by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School
There are cynics who say that Supreme Court justices are just politicians in black robes, willing to manipulate the law, and discard the Court’s own precedents, to suit their political views. But that’s misleading: the Court does not overrule its precedents very often at all. According to one analysis, in the last 75 years -- a period that includes activist Courts and restrained Courts, liberal Courts and conservative Courts -- the justices, in constitutional cases, have overruled just 91 of their previous decisions: an average of just over one each year.
Oral argument this month in Friedrichs v. California Teachers Association made it look like a nearly 40-year-old decision called Abood v. Detroit Board of Education might be this year’s addition to that list. That would make no sense at all.
Friedrichs, and Abood, are about the fees that public employees pay when they are represented by a labor union. Unions, of course, bargain with employers on behalf of employees, over wages, hours, and terms of employment, and they are required by law to represent all of the workers in their bargaining unit -- union members and non-members alike -- equally. Unions also engage in political activity, like campaigning on behalf of candidates. Since all employees benefit from the union’s bargaining and other workplace-related activity, the employer and union are allowed to agree that all employees will chip in to support that part of the union’s work. Otherwise, the entire arrangement might unravel: people will not pay for something -- in this case, the work that the union is required to do on their behalf -- if they can get it for free. At the same time, though, employees who disagree with the union’s political activities have a right, under the First Amendment, to refuse to pay for them. That’s what Abood held.
It seems like a sensible compromise. But sensible or not, it has been the law since 1977. The Friedrichs litigation was ginned up by some conservative lawyers to try to get the Supreme Court to overrule Abood and hold that employees have a right to refuse even to contribute to work that the union is doing on their behalf.
Nothing about Abood would justify the Court’s overthrowing it.
- Abood was a unanimous decision, and the Supreme Court has invoked it, cited it, implemented it, and relied on it many times in the intervening decades -- often unanimously. Lower courts have done the same. Only in the last few years -- decades after Abood was on the books but coinciding, of course, with a wide-ranging political attack on public employee unions -- has Abood’s status as a precedent been seriously challenged.
- It’s not just that the courts have relied on Abood – twenty-three states have labor laws that rely on the Abood compromise. That means that collective bargaining agreements -- the workplace constitutions -- governing millions of employees and resolving countless workplace challenges will have to be rewritten, at enormous cost, monetary and otherwise, to the effective working of state and local governments.
- And Abood is not just about labor unions. “Integrated” bar associations, to which lawyers are typically required to pay dues, engage in various forms of speech; the Supreme Court held that Abood governs that arrangement. The Court drew an analogy to Abood when it ruled that state universities could require students to pay activities fees that support student groups, including groups that propagated messages with which some students disagreed. If the Court overrules Abood, it is only a matter of time before litigants will challenge those institutions, too. Unless the courts are going to say that there are special rules that, for some reason, apply only to labor unions, they will have a hard time explaining why those other institutions are different.
The teachers who are challenging Abood -- their lawyers, anyway -- portray this all as an epic battle about free speech and the First Amendment. But it is worth keeping things in perspective. Abood leaves teachers, and all other public employees, completely free to criticize their union as vociferously as they like. They can attack the union’s leadership, its priorities, or its tactics. Meanwhile, everyone accepts that teachers’ rights to speak in the workplace can be limited in order to make sure that schools will function well. Teachers cannot say whatever they want in a classroom; they cannot disrupt relations with their colleagues; they cannot speak abusively to students or parents.