The conservative justices on the Supreme Court are poised to deliver a serious blow to public employees’ unions in California and many other states. Later in February, the court will hear oral arguments in Janus v. American Federation, and no one – liberal or conservative – has any doubt about the outcome or that the ideologically motivated decision will hurt public workers in this state and elsewhere.
In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the court held that non-union members can be required to pay the share of the union dues that support the collective bargaining activities of the union, though they do not need to pay the part of the dues that support union political activities.
The court’s decision in Abood was based on a simple and undeniably correct premise: Non-union members benefit greatly from the union in their wages, their working conditions, and the representation they receive. The court explained that they should not be able to be “free riders,” benefiting from collective bargaining without having to pay their “fair share” of the costs. Both government entities and unions have relied on this for decades in entering into thousands of contracts.
But in recent years, the five conservative justices then on the court – Roberts, Scalia, Kennedy, Thomas, and Alito – repeatedly criticized Abood and expressed a clear desire to overrule it. Two years ago, the court granted review on whether to overrule Abood in Friedrichs v. California Teachers Association. The case was argued on Monday, Jan. 11, 2016, and not one of the five conservative justices asked a question or made a comment that left doubt that he was going to vote that it violated the First Amendment to require that government employees pay their “fair share” of union dues.
Justice Antonin Scalia died on February 13, 2016, before the case could be decided. The Supreme Court dismissed the case, explaining that it was evenly divided, 4-4.
Now the court has granted review in Janus v. American Federation, which poses the same issue as Friedrichs: Should Abood be overruled? Everyone expects that Justice Neil Gorsuch will join Roberts, Kennedy, Thomas, and Alito in voting to overrule Abood.
The challengers claim that it is unconstitutional compelled speech to force non-union members to pay for union activities, even though they benefit from them. They are urging the Supreme Court to find that forcing them to pay dues for the collective bargaining activities of the union violates their First Amendment rights.
There are many problems with this argument. We all are constantly forced to pay for things where we disagree; that does mean we are being forced to speak. All of us see our tax dollars go to pay for many things we dislike, but no one would think of that as compelled speech. Students are required to pay student activity fees that go for speakers and other things with which they might disagree. But the Supreme Court expressly rejected the argument that this violates the First Amendment.
Having our money go to support something we dislike is not compelled speech. Non-union members can say, or not say, anything they want. They have the First Amendment right to not join the union.
Moreover, Abood draws a sensible distinction. No one should have to support political activities with which they disagree. But all who benefit from the collective bargaining process should have to share in paying for its costs.
Here, it is the liberals who are urging judicial restraint and asking the court to defer to the political process and follow 40 years of precedent. If the court overrules Abood, some, and perhaps many public employees, will choose to be free riders, not paying any part of the union dues knowing that they will get the same benefits from the union.
The result will be a significant reduction in revenue for unions and a decrease in union memberships. It will be a very significant blow to public employees’ unions in California and the more than 20 states that do not have right to work laws. In a society where corporations have so much power and influence, weakening the protections for workers and unions as a counter-force is deeply troubling.
There is no reason for the Supreme Court to overturn the choices of legislatures in California and elsewhere and no need to overrule four decades of precedents. The conservative justices should practice the judicial restraint that they so often preach. But I am not hopeful.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at firstname.lastname@example.org.