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From Inside the Supreme Court, the Key Exchanges on a Case Pitting Unions vs. First Amendment

This morning, the Supreme Court heard a challenge to the requirement in California that government employees, such as public school teachers, pay fees to the local union even if they choose not to join the union.

First Amendment Rights

In Friedrichs v. California Teachers Association, Rebecca Friedrichs and other teachers argue that forcing them to pay fees for the union’s collective bargaining costs amounts to compelled speech in violation of their First Amendment rights.

In Abood v. Detroit Board of Education (1977), the Supreme Court upheld “agency shop” arrangements, where government employees who don’t join a union must pay an agency fee for a “fair share” of the union’s collective bargaining costs because the nonmembers supposedly benefit from collective bargaining agreements. The Court determined that unions may not spend nonmembers’ agency fees on “ideological activities unrelated to collective bargaining.”

What Constitutes Political Choices?

As the public interest law firm representing Rebecca Friedrichs explains, however, “[w]hether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.”

As Justice Antonin Scalia pointed out in a question at the oral argument, everything that is collectively bargained for when it comes to government employees is necessarily within the political sphere. In fact, attorneys for the defendants admitted that agency fees in California include political costs such as lobbying state legislators to support union demands.

In recent years in two other cases, Knox v. Serv. Emps. Int’l Union (2012) and Harris v. Quinn (2014), the Supreme Court has questioned the validity of the Abood case for imposing a “significant impingement” on an employee’s First Amendment free speech and associational rights.

Collective Bargaining

Rebecca Friedrichs and other teachers from California are asking the Court to overrule Abood because public-sector collective bargaining is political speech. They also point out that the Abood decision cannot be reconciled with the rest of the Supreme Court’s First Amendment jurisprudence.

At today’s argument, Mike Carvin, who represents the dissenting teachers and is one of the country’s leading Supreme Court litigators, made a strong argument that the Abood decision should be overturned because the right of an individual—like Rebecca Friedrichs—to have her constitutional rights enforced outweighs stare decisis. Stare decisis is the policy followed by our judicial system that the courts should abide by and adhere to principles established by decisions in earlier cases.

Justice Sonia Sotomayor wanted to know why we treat private employers differently from public employers like the state of California. As Carvin pointed out, the First Amendment does not apply to private employers.

As an example, a private employer can fire an employee for not being a Republican or a Democrat—something government employers cannot do. Forcing teachers to pay an agency fee to a public union is forcing them to subsidize speech they disagree with.

Carvin raised a laugh in the courtroom answering a question from Justice Stephen Breyer, who wanted to know how this case is different…

 if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and the sword comes and takes any person from among them, he is taken away in his iniquity; but his blood I will require at the watchman’s hand.
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