A case of déjà vu

Imagine this: A group of non-union teachers sue the state and a teachers union over fees they are forced to pay to the union. The non-union teachers don’t like unions and believe that the First Amendment shields them from having to support the union in any way. The union and the state argue that the fees are necessary for the state to maintain proper labor relations with its public employee workforce, and to make sure that all employees who benefit from collective bargaining chip in to cover the costs. The Supreme Court considers the arguments of both sides and makes a decision. That decision will be used by state and local governments and public sector unions to dictate agreements and contracts for years to come.

You’ll notice something key missing from what’s been described above—namely, the outcome of the Supreme Court’s decision—and that’s to prove a point. The scenario above can be used to describe both what is happening this term as the Court considers the case Friedrichs v. California Teachers Association, and what happened nearly 40 years ago in the case Abood v. Detroit Board of Education. The only difference is that we know the outcome of the earlier case, Abood: The Court unanimously upheld the rights of workers to organize, and of unions to collect the “fair share” fees needed to represent all workers effectively. In all other respects, the present-day case, Friedrichs, is the same. So, shouldn’t the outcome in Friedrichs be the same as the outcome in Abood?

Consistent rulings in these two cases are important not just for the sake of logic. The Supreme Court’s decision in Abood resolved important First Amendment issues and gave state and local governments a blueprint for structuring labor relations with their public employees. It has become the basis for tens of thousands of contracts and collective bargaining agreements over the years. It has allowed public sector unions to continue to provide important negotiation, grievance, and training services for all public employees, regardless of union membership. And in many instances, the decision has allowed state and local governments to continue providing vital services to the public without disruption.

So what gives? Why is the Supreme Court now hearing a case that has the potential to throw all of this out the window? The parties haven’t changed (non-union members vs. state and union). The issues that Abood resolved haven’t changed (non-union members’ First Amendment rights vs. unions’ need for fair-share fees). The magnitude of the potential consequences of the Court’s decision hasn’t changed. The Constitution hasn’t changed. So what has?

The Supreme Court, that’s what. No justice that decided Abood in 1977 still sits on the Court today. In their place are four justices (Ginsburg, Breyer, Sotomayor, and Kagan) who have consistently upheld the rights of everyday people, including working families. On the other hand, the other new justices (Alito, Kennedy, Scalia, Thomas, and Chief Justice Roberts) have routinely ruled in favor of powerful interests, especially large corporations who want to expand their rights at the expense of individual people. One of these more conservative justices, Justice Samuel Alito, has expressed in writing that he’s so sure that Abood was wrongly decided that he is willing to jeopardize the stability of public sector labor relations in some of the largest states and municipalities in the country.[1] The question facing the Court at oral argument for Friedrichs, then, is whether such judicial recklessness will prevail.

[1] See Harris v. Quinn, 134 S. Ct. 2618 (2014); Knox v. SEIU, 132 S. Ct. 2277 (2012).