Supreme Court Seems Skeptical Over Public Union Fees

Visitors wait in line at the U.S. Supreme Court building in Washington, D.C., on October 13, 2015. Jonathan Ernst/Reuters

Conservative U.S. Supreme Court justices on Monday appeared poised to support a legal challenge brought against public sector unions.

At issue in the case, Friedrichs v. California Teachers Association, is whether state government workers who choose not to join a union can then be forced to pay agency dues to cover the costs of negotiating contracts, whether or not they agree with the decisions and terms.

The much anticipated case could hold huge ramifications not only for the millions of public school teachers, police officers and other public-employee union members but also for American politics. After decades of steep declines in union membership in the private sector, the growth of public employee unions remains a readout of strength for the American labor movement. If the court were to allow individual public employees to opt out of paying the bulk of their union dues, it could potentially handicap the labor movement and its allies in the Democratic Party.

The nine-member court focused its attention on the First Amendment rights of government workers who say they shouldn't be forced to pay the so-called "fair share service fee" to public employee unions to help pay for the cost of collective bargaining. After the 80-minute oral argument, the conservative justices appeared ready to rule that such financial support violates free speech.

The plaintiffs, a group of California public school teachers, whose arguments are backed by conservative legal groups, argue the required so-called "fair-share" fees violate the First Amendment rights of public employees who don't agree with the terms of the unions, which often support Democratic candidates and liberal policies.

The majority of public sector unions are based in 23 states where unions are required to bargain for both members and nonmembers, from Alaska to California, to Illinois and Maine. The eventual ruling will affect millions of public employees, including police, firefighters, teachers and health care workers, by deciding whether the states can force public employees to contribute to the fees.

The California teachers want the high court to overrule an almost four-decade-old precedent set in a 1977 case that allows public sector unions to require those who aren't union members to pay the full amount of union dues to support its negotiation work, as long as the money doesn't go toward political causes.

The court in that case, Abood v. Detroit Board of Education, ruled that unions constitutionally can collect the agency fees to cover costs of union activity and prevent nonmembers from becoming free riders—workers who benefit from a union contract without paying for it. The decision also included prolonging "labor peace" in requiring nonmembers to help pay for the collective efforts.

But the teachers challenging the mandate say unions have become essentially political and that collective bargaining is not an ideologically neutral political activity.

As is so often the case, observers are closely watching Justice Anthony Kennedy, who has been a pivotal swing vote in cases ranging from same-sex marriage to voting rights. On Monday, Kennedy, along with Chief Justice John Roberts, who has occasionally sided with liberals, especially in a key Obamacare case, seemed poised to side with the other three conservative judges on the court.

Roberts pointed out to the California solicitor general arguing in support of the unions that the amount of money allocated to public education, as opposed to public housing and welfare benefits, is "always a public policy issue."

Union supporters say the lawsuit is part of the long-standing conservative agenda to weaken powerful labor unions. The high court's four liberal members defended the practice currently in place, questioning whether it's sufficient to overturn such a long-standing constitutional precedent.

"You come here with a heavy burden. That's always true in cases where somebody asks us to overrule a decision," Justice Elena Kagan told the lawyer arguing for the teachers.

Geri Prado, executive director of the Progressive Agenda Committee, later on Monday called the case an "attack on working people" and urged the high court to reject the attempt.

"At a time when they need a voice more than ever before, this case threatens the ability of working people to earn what they worked for," Prado said.

The justices are expected to rule in the case by the end of June.