Just a few short weeks ago, in the wake of the U.S. Supreme Court’s hearing of oral arguments of a landmark case challenging forced financial support of government unions on First Amendment grounds, observers of the High Court overwhelmingly agreed it was poised to bar compulsory dues and fees in the public sector by a 5-4 majority.
Throughout the 80 minute-long oral arguments in Friedrichs v. California Teachers Association on January 11, four justices sent clear signals that they were inclined to rule against teacher union officials. California Attorney General Kamala Harris defended the proposition that state laws authorizing the termination of public employees for refusal to bankroll union bargaining activities are constitutional.
A fifth justice, George H.W. Bush appointee Clarence Thomas, followed his usual practice of keeping silent during oral arguments. Based on his judicial track record over the past quarter century at the High Court, it is reasonable to guess he would vote to bar public-sector forced dues and fees.
The Friedrichs case is based largely on precedents argued and won by National Right to Work Legal Defense Foundation attorneys on behalf of employee clients. In an interview published January 8, the head of the Center for Individual Rights (CIR), which put together the case with independent-minded West Coast educators, specifically credits two Foundation precedents for paving the way. The cases singled out by CIR President Terry Pell are the Foundation’s 2012 High Court victory in Knox v. Service Employees International Union Local 1000 and its 2014 High Court win in Harris v. Quinn.
Friedrichs seeks to overturn a 39-year-old Supreme Court decision, Abood v. Detroit Board of Education. Writing for the Abood court in 1977, Justice Potter Stewart admitted forcing public employees who don’t want a union to bankroll union bargaining activities “interferes” with their First Amendment rights, but contended such interference is acceptable since it is deemed to promote “labor peace.”
Justice Anthony Kennedy repeatedly wondered aloud if this government interest could even potentially have sufficient weight to justify systematic and preemptive interference with the First Amendment rights of a whole class of employees: I suppose . . . we could assume that a State is always benefitted and . . . is more efficient if it can suppress speech.
Even the four justices who evidently disagreed with Kennedy’s perspective that “labor peace” and “efficiency” are inadequate reasons for compelling a public servant to pay someone “to espouse a belief he doesn’t share” in order to continue working for taxpayers did not offer a principle reason why. Instead, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor complained revoking special privileges approved by Abood nearly four decades ago would be “disruptive.”
Unfortunately, this lame excuse for continuing to allow the free speech rights of government employees to be trampled could prevail in the wake of the February 13 passing of Justice Antonin Scalia. Without Scalia’s vote, Kennedy, Thomas, Knox and Harris majority opinion author Sam Alito and Chief Justice John Roberts are expected to cast four votes to overturn Abood, while Breyer, Ginsburg, Kagan and Sotomayor are expected to vote to uphold it. If expectations prevail, the result will be a 4-4 tie, effectively upholding the pro-forced unionism decision issued in Friedrichs by the Ninth Circuit U.S. Court of Appeals in late 2014.
A tie vote would not establish a new, binding Supreme Court precedent. But it would perpetuate the government-sector forced-unionism status quo in every state where Big Labor legislators have already established such a scheme.
That’s why, within hours of Scalia’s death, pro-forced unionism media pundits had “gleefully proclaimed” the Friedrichs case “over and done with,” as a February 17 statement issued by the CIR pointed out.
But this unseemly gloating was premature.
As the news story linked below reports, the CIR has publicly announced on behalf of the Friedrichs plaintiffs that, if current prognostications that the current court will split 4-4 on the case turn out to be correct, Counsel of Record Michael Carvin and his associates will file a motion asking that the court rehear the case as soon as a replacement judge has been seated on the court.
Since a majority of members of the U.S. Senate Judiciary Committee have already publicly announced that they will not consider High Court nominations until after the new President who is elected this November takes office in January 2017, that means it could easily be well over a year before a final resolution in Friedrichs is reached.
No one can deny there remains a strong possibility, at least, that when that happens government union bosses’ forced-dues privileges will remain intact. But it is still far too early to jump to that conclusion.