Supreme Court Weighs Changes That Would Hurt Public Unions' Bottom Lines

A landmark Supreme Court decision that's nearly 40 years old is on life support. The outcome of a case currently before the court could cripple public employee unions in 23 states, and weaken their influence nationwide.

In 1977 the Supreme Court declared that state and local governments can require nonunion public employees to pay partial fees for negotiating union contracts that cover them. Conservative activists and union opponents long have hated the decision, and on Monday a majority of Supreme Court justices seemed poised to reverse it.

Nearly four decades ago the court said that while nobody is required to join a union, nonunion members can be required to pay so-called fair-share fees to cover the costs of negotiating the contract they benefit from. The caveat is that nonmembers do not have to pay for the union's lobbying and political expenses.

But in the past two years, conservative Supreme Court justices led by Justice Samuel Alito have all but invited a challenge to that 1977 ruling, and on Monday that challenge was finally before the court — a lawsuit brought by 10 California teachers who object to paying the mandatory service fees.

Within moments it was apparent that the court's four more-liberal members were fighting an uphill battle.

Until the argument, the unions had some reason to hope that conservative Justice Antonin Scalia might side with them; in the past, he has seemed to agree with the view that unions need to collect service fees to prevent "free riders." But on Monday he was consistently hostile to that position.

"The problem," he said, "is that everything that is collectively bargained with the government is within the political sphere."

Kennedy's Questions

Justice Anthony Kennedy, the member of the court most likely to be open to persuasion on many other issues, is something of a purist when it comes to the First Amendment; he is the author of the court's 2010 decision striking down many key campaign contribution and spending limits. On Monday, he suggested that service fees — rather than preventing nonunion members from being free riders — create "compelled riders" in support of contract provisions they disagree with.

At the opening of Monday's argument, Kennedy did wonder why, if public employees could be exempt from paying union service fees, the same would not be true for private sector employees who work in a unionized shop.

The challengers' lawyer, Michael Carvin, replied that the First Amendment doesn't apply to the private sector; it applies only to government restrictions on speech.

But, replied Kennedy, if the state authorizes nonmember service fees in the private sector, wouldn't that be the same kind of "coerced membership and coerced speech you are objecting to?"

Carvin said he did not think so.

But, interjected Justice Elena Kagan, isn't that the point? She maintained that the court's public employee cases historically were aimed at ensuring that "when the government acts as an employer," it is in "the same position as a private employer." In other words, when it is dealing with the employee workforce generally, the government is no different than a private employer, except that the government is not permitted to use its "leverage" to target individuals to prevent them from expressing their views.

Justice Kennedy observed that if the union has a public relations campaign against merit pay, nonunion member fees are charged for that, even though nonmembers may disagree.

Justice Sonia Sotomayor countered that those members who disagree are not prevented from speaking out or expressing themselves to the legislature.

How Far To Go In Overruling Precedent

Justice Kagan then focused on a larger question — whether the court's 1977 ruling had proved either so unworkable or untenable that it should be reversed.

You come here "with a heavy burden," she said to Carvin. "That's always true in cases where somebody asks us to overrule a decision." And here there are "tens of thousands of contracts" with these service-fee provisions for nonunion members, contracts that affect as many as 10 million employees. So, she asked, what special justifications are you offering here?

Carvin replied that the 1977 decision was wrong, out of step with other First Amendment cases, and thus should be reversed.

An incredulous Justice Breyer asked whether Carvin thought all of the court's decisions were correct.

"Maybe Marbury v. Madison was wrong," Breyer said, referring to one of the most important landmarks of American law. There are people who think it was, he added. As for the 1977 labor law decision, he observed that it was a "compromise" — but stressed that that "was 40 years ago." If the 1977 decision were overturned, Breyer said, there were at least three other decisions that sprang from it that would have to be overruled as well.

Some things are basic enough that they warrant overruling, Breyer noted — like the 1896 decision upholding racial segregation — but most are not.

If you start overruling things, Breyer continued, "what happens to the country thinking of us as a kind of stability in a world that is tough, because it changes a lot?"

Do Unions Make Managing Easier?

Next up to the lectern was California Solicitor General Edward DuMont, siding with the union in this case. He noted that 90 percent of California's 325,000 teachers are union members, and that unionization actually has prevented the massive strikes that characterized the state workplace until the court's 1977 decision.

Chief Justice John Roberts was doubtful. If the employees want this so overwhelmingly, he asked, then isn't the concern about free riders "insignificant"?

No, replied lawyer DuMont — because suddenly, what you had to pay for before would be free. Minor disagreements among union members and nonmembers alike would be magnified and, as occurred in the 1960s, there would be constant unrest because of disagreements from people who support a rival union.

The problem, interjected Justice Scalia, is that everything a public union negotiates for "involves political questions. Should the government pay higher wages ... should it promote based on seniority ..."

Chief Justice Roberts, impatient, asked DuMont for his "best example" of something the union negotiates for that is not political.

Mileage reimbursement rates and safety measures, replied California's lawyer.

But "that's all money," replied Roberts. "That's how much money is going to have to be paid to the teachers."

DuMont answered, "What is fundamental is that we need to be able to run our workplaces," and the most efficient way of doing that is by negotiating with a single democratically elected union that has the power to bargain over matters that, of necessity, do involve some public policy issues.

Moments later Justice Kennedy observed caustically that a state is always "more efficient if it can suppress speech."

It seemed not to matter to the court's conservatives that the state, the union and the federal government were all on the same page.

David Frederick, representing the union, argued that the court long has given government more leeway when it is acting as an employer dealing with its workforce.

The last to argue was U.S. Solicitor General Donald Verrilli, representing the largest public employer in the country: the federal goverment.

Employee speech does have some First Amendment protection, he said — but in the collective bargaining context, the standard for evaluating it has to be "reasonableness," not the "exacting scrutiny" we would require if the government acted to regulate speech.

A decision in the case is expected later in the Supreme Court term.

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