The Supreme Court put public-sector unions in its crosshairs Tuesday by agreeing to hear a constitutional attack on the mandatory representation fees that nearly all California teachers pay.
As they concluded a memorable term that legalized gay marriage and rejected another attack against Obamacare, the justices set the stage for an equally momentous 2016.
They are expected to hear and decide cases on several liberal priorities, including college affirmative action, abortion, how voting districts are calculated and, now, how unions are funded.
Though the conservative justices were on the losing side this year in some of the biggest disputes, including housing discrimination and political gerrymandering, their apparent interest in hearing the union case shows they remain determined to set the agenda, even if they do not always prevail.
The California case not only poses a potential existential threat to public unions, but it could also weigh heavily on the Democratic Party, which depends on strong support from public employees and labor.
“This is a very significant case. It may well be life or death for the unions,” said Harvard Law School professor Benjamin Sachs. “Unions are required to represent everyone. And this could mean nobody has an obligation to pay.”
A ruling against the mandatory fees would have a major effect on California’s public employee unions, which are among the most powerful in the country and represent hundreds of thousands of workers.
At issue is the court’s 1977 precedent in Abood vs. Detroit Board of Education, which today allows government worker unions in California and 20 other states to collect “fair share” fees to cover the costs of collective bargaining, even from employees who do not join or support the union.
Though the high court has said workers cannot be required to pay for a union’s political activities, it has concluded that they should contribute something toward a union’s cost of negotiating better wages and benefits for everyone.
The court’s conservatives, particularly Justice Samuel A. Alito Jr., have long questioned whether these forced fees in the public sector violate free speech because they require employees to support a union they may oppose.
The dispute does not affect private-sector unions because only the government is required to abide by the 1st Amendment.
In addition, Alito has suggested that the line between a public-sector union’s collective bargaining and its political activities is blurred because negotiations to increase the size and cost of government payrolls, for example, could also be considered a political issue.
In a case last year involving union fees paid by home healthcare aides, the majority ruled that Illinois may not force those state-funded workers to pay union fees. The 5-4 opinion, written by Alito, found that although state employees have free-speech rights, the healthcare workers in question actually worked for the patients, not the state.
That skirted the broader issue of whether all mandatory fees were constitutional, but opened the door for the next case, Friedrichs vs. California Teachers Assn., to challenge the forced fees on free-speech grounds.
“Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support,” Alito wrote in that decision.
Although Alito can probably count on most of his fellow conservatives to vote with him against the forced fees, Justice Antonin Scalia may prove to be the toughest vote because he has written in support of the Abood ruling.
Catherine Fisk, a labor law expert at UC Irvine, noted that it takes only four votes to hear an appeal, but five are needed for a majority decision. “The mystery of Friedrichs is whether there is now a fifth vote,” she said. “Justice Scalia may be crucial.”
Scalia wrote in 1991 that because public-sector unions had a legal duty to represent all employees who had grievances or other problems, it was reasonable to require all workers to pay their fair share of the cost.
The Supreme Court case comes at a time when public-sector unions are already being targeted by Republican governors in formerly strong union states like Illinois, Michigan and Wisconsin. About half of the states — including all of the South — have so-called right-to-work laws forbidding collective bargaining and union agreements that require all employees to support the union.
In Wisconsin, Gov. Scott Walker built a national reputation by pushing through legal changes that in effect ended collective bargaining for most public workers in that state.
The latest Supreme Court appeal began with Rebecca Friedrichs and several other public teachers from Orange County who object to supporting the California Teachers Assn.
Full dues for California teachers who join the union are about $1,000 a year, but even nonmembers like Friedrichs have to pay about $650 on average for their share of the cost of collective bargaining, her lawsuit says.
“I don’t have a voice or vote in the union, and I’m opposed to forced fees and forced unionism,” she said in an interview when her appeal was filed this year.
The Center for Individual Rights, a small conservative group in Washington, appealed her case to the high court and is asking justices to overturn the Abood decision.
The appeal was filed by Michael Carvin, the same Washington lawyer who argued this year’s unsuccessful challenge of President Obama’s healthcare program. He called upon the court to strike down the “multi-hundred-million-dollar regime of compelled speech” that benefits unions.
“This case is about the right of individuals to decide for themselves whether to join and pay dues to an organization that purports to speak on their behalf,” said Terry Pell, the center’s president. “We are seeking the end of compulsory union dues across the nation on the basis of the free-speech rights guaranteed by the 1st Amendment.”
Frank Wells, a spokesman for the California teachers union, said only a small percentage of teachers chose to pay the lower nonmember fees rather than full dues. The union has 325,000 members and an additional 31,000 fee payers, he said.
Leaders of the nation’s largest unions of teachers and public employees reacted with anger and alarm to the Supreme Court’s move Tuesday.
“The court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities,” reads a statement by the heads of the National Education Assn.; American Federation of Teachers; California Teachers Assn.; American Federation of State, County and Municipal Employees; and Service Employees International Union. Together, they represent 4.6 million teachers and 3.6 million other public employees.
National Nurses United, which represents about 190,000 nurses, said the legal attack to weaken unions was driven by the conservative billionaire Koch brothers and other corporate groups. Their goal is to “essentially bankrupt public-sector unions,” said Jean Ross, a nurse and co-president.
Both sides are ready for a full-fledged fight in the fall, when arguments will be held.
Sachs, the Harvard professor, said the status of unions had been a political issue of late, not a legal one. “This is asking the court to essentially hold that ‘right to work’ [without paying mandatory union fees] is a constitutional requirement in the public sector,” he said.
Mark Mix, president of the National Right to Work Legal Defense Foundation, welcomed the court’s announcement.
“The American people overwhelmingly support the principle that while individual employees should be free to join and pay dues to a union if they so choose, none should be required to do so,” he said.