The US Supreme court recently handed down a landmark 4 – 4 tie decision in Friedrichs v. California Teachers Association, which is being heralded as a major victory for the organized labor movement. It effectively permits the continuation of fee collection from non-members to cover collective bargaining activities of public trade unions.
Background of the Case
Rebecca Friedrichs, a California teacher, argued that she was forced to pay agency fees for the political activities of the California Teachers Association against her First Amendment rights. The Center for Individual Rights (CIR), a nonprofit public interest law firm “dedicated to the defense of individual liberties against the increasingly aggressive and unchecked authority of federal and state governments,” supported Ms. Friedrichs’ claims by representing nine additional California teachers and the Christian Educators Association International.
The Petitioners’ effort was to re-establish the rights of individuals (teachers or any other public employee) to decide for themselves whether to join and support a public trade union. They claimed that the fees charged by the California Teachers Association, a public trade union, infringed upon their rights of free speech. The Petitioners’ argument echoed the position of appellant teachers in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) four decades earlier. The Petitioners in today’s case emphasized that they had chosen to not join the union, and they argued that as non-members of the union, they should not have to pay union fees. Petitioners also arguably applied an unusual litigation strategy of requesting that lower court judiciary rule against the group in order to seek an appeal in the Supreme Court.
The California Teachers Association, however, argued that all teachers benefit from their work, as some of the fees pay for collective bargaining activities. In contrast to the Petitioners’ strategy, the union’s position for charging non-members such fees was that the legality of the practice had been provided by the decision in Abood. In Abood, the Supreme Court found that non-members could be billed for “collective bargaining, contract administration, and grievance adjustment purposes”. However, non-members could not be assessed for fees in relation to political or ideological efforts of trade unions. The decision in Abood affirmed precedents that had been established earlier in relation to private sector union fee management and non-members in the cases of Railway Employees’ Dept. v. Hanson, 351 U. S. 225 and Machinists v. Street, 367 U. S. 740.
Friedrichs in January and Scalia
In January when the case was argued before the nation’s highest court, the majority of the justices arguably formed a conservative view of the matter. Michael Carvin argued, for the Petitioners, that forcing public workers to pay dues and support unions which they do not choose to join was a violation of the First Amendment.
Justice Scalia’s views on the issue were observed to be particularly hostile to the union’s claim. The late justice appeared to doubt that such a decision for the petitioners would lead to grave consequences for trade unions. Justice Scalia asked David C. Frederick, arguing for the unions, to elaborate on why unions “would not survive without these fees charged to nonmembers of the union?”
Scalia’s position appears to be supported by the court’s conservative justices, and commentators generally felt that case was one which the unions were certain to lose. The conservative wing of the court was generally believed to be Chief Justice Roberts and Justices Samuel Alito, Clarence Thomas, and the late Antonin Scalia; Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan are regarded as the liberal justices, with Anthony Kennedy as the swing vote.
The sudden death of Scalia and Friedrichs
The sudden death of Justice Scalia led to a vacancy in the Supreme Court and a tie of four conservative justices and four liberal justices .The tie situation resulted in an affirmation of the Ninth Circuit’s earlier decision of the case.
The sudden death of Scalia and the future of the Supreme Court
Critics for some time have argued that the personalities of the Supreme Court, particularly the outspoken Justice Scalia and other conservative justices, have systematically pushed the law to the right. The sudden death of Scalia led to a situation where the conservative wing of the Supreme Court has lost its blocking power. The implication is most likely to be more liberal decisions and a more prominent role for swinging justices such as Justice Kennedy.
Re-hearing
The Center for Individual Rights filed a petition for rehearing to hold new arguments when a new justice of the Supreme Court is confirmed and a majority ruling can be entered. The CIR had this to say about the split decision: “The split decision effectively denied the parties a full decision on the merits, leaving existing laws in place in the twenty-three states that impose compulsory dues on public employees as a condition of employment. [This] petition urges the Court to grant a rehearing so that the important question of the First Amendment rights of public employees can be decided authoritatively by the full Court.”