A careful anti-union strategy wrecked by Scalia’s death

Justice Antonin Scalia’s death has thrown a spanner into a carefully planned union-busting legal strategy. Opponents of unions have long sought to overturn a 1977 Supreme Court precedent known as Abood v. Detroit Board of Education that allowed unions to collect fees from non-union members to cover the costs incurred in contract negotiations and enforcement that benefited even the non-union members. Opponents of unions had argued that unions can use those fees to promote political views and thus they were being forced into speech that they do not agree with.

Michael Hiltzhik describes the strategy that was used to try and overturn Abood in the case Friedrichs v. California Teachers Association.

Abood as a precedent has withstood previous attacks, but the conservative Supreme Court majority had begun to signal that it was primed to overturn Abood, notably in cases in 2012 and 2014. Friedrichs was the stiffest test yet.

Plainly aware that Abood was hanging by a thread, the Center for Individual Rights strived to speed the Friedrichs case through the lower court after it was filed in 2013. It did so by conceding in both federal court in Santa Ana and at the 9th Circuit that both would be bound by the Abood precedent; therefore, it asked both courts to simply rule in the teacher union’s favor so it could promptly carry the appeal to the Supreme Court. Both lower courts did so.

This doesn’t mean that the the lower courts were seriously expected to rule against the union on their own. The 9th Circuit Appeals Court, for one thing, is a generally liberal court that was likely to reject the anti-union challenge in any event. But the strategy greased the way for the ultimate appeal by avoiding the time-consuming briefings and arguments usually employed to build a factual record to bring to Washington. The center formally petitioned the court to accept the case in January 2015, and the Court agreed in June.

Oral arguments were presented to the court on January 11, 2016. It looked like that anti-Abood forces’ strategy of throwing in the towel in both the district and appeals courts so as to get a quick verdict in their favor at the Supreme Court was going to be successful. Amy Howe discussed why the oral arguments did not bode well for the union side.

The most telling sign that lead plaintiff Rebecca Friedrichs and her fellow teachers are likely to prevail may have actually come from the Court’s four more liberal Justices, who spent relatively little time on the main legal issue before the Court – that is, whether requiring non-members to pay the fee violates the First Amendment. Instead, many of their questions centered on whether, even if Friedrichs has a stronger legal argument, the Court should still rule against her based on a legal doctrine known as “stare decisis” – which counsels that the Court should not overturn its prior rulings unless there is a particularly compelling reason to do so. This suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win. And so they shifted gears, trying to salvage a victory by convincing at least one of their colleagues that it would, as a matter of principle, be a bad idea to overrule the decision in Abood.

Justice Elena Kagan led the charge, telling Michael Carvin – who argued on behalf of Friedrichs – that public-employee unions have entered “tens of thousands of contracts,” governing “millions of employees, maybe as high as 10 million employees,” that would be disrupted if the Court were to overturn Abood. Therefore, she asked Carvin, “what special justification are you offering here” to do so? When Carvin answered that “the right of the citizen not to be subjected to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis,” Kagan shot back, clearly unconvinced: “Your answer is essentially you don’t need a special justification if” the first decision denied a constitutional right? Justice Ruth Bader Ginsburg chimed in, asking whether employees who don’t join a union would ask for their fees back if Friedrichs wins and suggesting to Carvin that, if the Court overrules Abood, other cases that rely on it would also fall, with far-reaching effects.

During oral arguments, it looked like Scalia was leaning in favor of overturning Abood, likely resulting in a 5-4 majority against unions if Kennedy also joined them. But his death would mean a 4-4 tie, thus upholding the Appeals Court verdict in favor of Abood and supporters of unions would have a reprieve.


  1. lanir says

    I personally see the argument here. I’m not sure unions have ever been considered a perfect solution to the problems they combat but they are a solution. Removing their ability to be that without filling the void somehow would obviously be wrong on many levels.

    I would be all for a ban on unions spending money on politics if there were a similar ban on corporate spending on politics and lobbying.

  2. DonDueed says

    Here’s my solution… which has no chance of ever being realized in the real world.

    Employees in a union shop would have the right to opt out of the union (as they do today). If they do so but pay the fee, they get the advantage of the results of all contract negotiations.

    If, however, they choose not to pay the fee, they do not get any of the benefit of those negotiations. Instead, they get the company’s first offer to the union in any contract negotiations. Their pay and benefits would not go up until the contract expires and another contract is agreed upon, at which time they again get the company’s first offer (and so on). The company would not be allowed to make up the difference in other ways (bonuses, extra perks, etc.)

    Am I King Solomon or what?

  3. gshelley says

    Is there any particular reason why a company can’t offer a different contract to union and non union employees?

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