by Charlotte Garden, associate professor at Seattle University School of Law, and Litigation Director of the Korematsu Center for Law & Equality. Follow her on Twitter @CharlotteGarden
Lawyers are a naturally contrarian bunch, but there is near-unanimous agreement that yesterday’s oral argument in Friedrichs v. California Teacher’s Association went very badly for public sector unions and the public employers they bargain with. It is nearly inevitable that the decision will be 5-4, split along the usual line. It is also likely that Justice Alito will write the decision—that would be Chief Justice Roberts’s call, but Alito also authored the 2012 and 2014 opinions limiting public sector union fees and all but inviting Friedrichs; he will almost certainly be tapped to complete the trilogy.
At argument, five Justices seemed poised to adopt the view that public sector agency fee requirements—under which union-represented workers must pay their share of the costs of contract negotiation and administration—are unconstitutional because those contracts cover matters of public concern. Time and time again, the conservative justices returned to that theme. For example, Chief Justice Roberts asked California Solicitor General Edward DuMont to name his “best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question.” When General DuMont suggested mileage reimbursement rates, the Chief responded with “That’s money . . . And the amount of money that’s going to be allocated to public education, as opposed to public housing, welfare benefits, that’s always a public policy issue.” Yet, the Abood decision—which will likely be overruled by Friedrichs—also acknowledged that public sector collective bargaining concerned political issues, but still concluded that agency fees were consistent with the First Amendment. So what’s different now? Two things.
First, the conservative justices seem to have settled on a basis to distinguish the many decisions giving government employers substantial leeway to reasonably prohibit or require speech: that collective bargaining involves a group of employees, while decisions like Garcetti v. Ceballos involved single employees. That distinction is shaky at best—after all, the wayward prosecutor in Garcetti violated a workplace norm that governed all prosecutors—but it has its genesis in Harris v. Quinn. There Justice Alito wrote that a single employee asking for a raise was not a matter of public concern, unlike a group of employees asking for a raise.
Second, and related, there is the Court’s shift away from deferential review to strict scrutiny in union fees cases. In most cases about public employee speech, the Court asks only whether the restrictions are both reasonable and related to the government’s interest as employer. Yet in the recent union fees cases, Justice Alito has written that strict scrutiny applies. (As Justice Breyer observed in a different context during the Friedrichs argument, there seems to be a special rule for “just labor unions.”) This shift makes the state’s and union’s case harder in all the expected ways, but the Friedrichs argument also surfaced one unexpected way: the Friedrichs plaintiffs resisted the union’s attempt to develop a factual record in the lower courts, arguing that because their position was foreclosed under Abood, there was no need for a record. But it appears that it is the state’s and the union’s oxen who will be gored by that procedural gambit, because several conservative justices suggested that the state & union should have attempted to prove that the union could not function without agency fees. Of course, the Court could send the case back for development of the factual record, though that possibility is vanishingly small.
Unions have been preparing for the fallout of an eventual bad outcome in Friedrichs since it was granted last summer; undoubtedly those efforts will intensify in the coming months. But the fact remains: if Friedrichs strikes down public sector agency fees, unions, represented employees, and public employers will have to rely on workers’ good will in deciding to contribute to their union’s representation costs. Undoubtedly, some workers will make the decision not to pay, potentially destabilizing labor relations in nearly half the country.