Public Unions Can Breathe Another Sigh Of Relief At The Supreme Court

WASHINGTON — A short-staffed Supreme Court won’t rehear an explosive case that could have dealt a fatal blow to public unionism as we know it.

Earlier this year, the justices were evenly divided and thus failed to reach a final ruling in Friedrichs v. California Teachers Association, a constitutional challenge to so-called “fair-share” fees — which any worker can be required to pay if a union bargains on their behalf, even if they are not personally a member of the union.

In January, a conservative majority on the Supreme Court seemed poised to rule that these fees, which critics say are a form of “compelled speech” under the First Amendment, were unconstitutional.

But following the sudden death of Justice Antonin Scalia, who himself had shifting views on the issue, the court couldn’t seem to reach a consensus. In March, it issued a nine-word decision that effectively upheld an earlier ruling that sided with the teachers’ union at the center of the case.

In a one-line order issued Tuesday, the court declined to reconsider that 4-to-4 outcome, which means this particular dispute is effectively over — and public unions can breathe another sigh of relief — until the next time a case raising similar arguments reaches the Supreme Court, by which point there could once again be nine justices on the bench.

As for the politics inside the court, the docket in the case suggests there was a lot of back-and-forth behind the scenes after the challengers petitioned the court for a do-over. But it seems there wasn’t a clear majority of justices who were willing to agree to it, which is required under court rules.

Friedrichs posed an existential threat to public-sector unions and, by extension, to organized labor at large.

When, as in this case, a union represents teachers, even those teachers who decline to join the union can be required to pay fair-share fees to the union. These fees, which are less than full dues, help cover the costs of collective bargaining but not political activities. Since a union must bargain for everyone in the bargaining unit, unions argue, it’s only fair that everyone pitch in.

Seizing on prior Supreme Court decisions, the group of California teachers who sued in Friedrichs — and who later petitioned the court to re-hear the case — sought to have fair-share fees struck down as unconstitutional. They argued that since public employees bargain over salaries and benefits, and since tax dollars pay those salaries and benefits, it means public-sector unionism is an inherently political activity. Therefore, they claimed, fair-share fees amount to compelled political speech.

Many states already have right-to-work laws that prohibit fair-share fees, meaning workers can’t be required to contribute anything to cover the costs of bargaining and contracts.

The judgment is affirmed by an equally divided Court.
U.S. Supreme Court in Friedrichs v. California Teachers Association in March 2016

A Friedrichs ruling against unions might have made the entire U.S. public sector right-to-work in one fell swoop. That would have been a devastating blow to unions that represent public employees, likely draining their coffers as well as their political clout.

Since public-sector unions are helping to prop up organized labor as a whole — union membership in the private sector has tumbled to just 6.7 percent — that would have been bad news for all unions. It wouldn’t have been so good for the Democratic Party, either, since unions are major contributors to Democratic campaigns.

And conservatives on the Supreme Court, animated by legal activists seeking to overturn the decades-old precedent upholding the constitutional legitimacy of fair-share fees, appeared ready to turn that tide. In fact, public-sector unions had already begun preparing for a world in which fair-share fees would be banned.

But when the court deadlocked — no doubt because of Scalia’s unexpected absence — all unions were spared. At least for the time being.

Dave Jamieson reported from Washington; Cristian Farias reported from New York.

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