When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme To Destroy Unions

Moshe Z. Marvit February 15, 2016

Some held out hope that Justice Scalia might go labor's way on Friedrichs, because of his understanding of the 'free rider' problem. But that hope was dashed during oral arguments.

Con­ser­v­a­tives had a great plan in motion to dec­i­mate unions. If Jus­tice Antonin Scalia hadn’t died in his sleep, they almost cer­tain­ly would have pulled it off.

First they got the Court to rule their way in 2014’s Har­ris v. Quinn, which tar­get­ed home health­care unions. Like right to work” laws, the case sought to gut unions’ fund­ing and dimin­ish sol­i­dar­i­ty by say­ing that union mem­bers can’t be required to pay dues. The Court agreed, hold­ing that the First Amend­ment does not allow the col­lec­tion of fair share fees from home health­care work­ers. The deci­sion, writ­ten by Jus­tice Ali­to and signed by the Court’s four oth­er con­ser­v­a­tives, also not-so-sub­tly invit­ed fur­ther attacks on the fund­ing and mem­ber­ship of unions. 

Next came Friedrichs v. Cal­i­for­nia Teach­ers Asso­ci­a­tion, which sought to expand Har­ris to impose right-to-work on all pub­lic sec­tor employ­ees. The con­ser­v­a­tive Cen­ter for Indi­vid­ual Rights (CIR) rushed Friedrichs to the Supreme Court by essen­tial­ly con­ced­ing at every low­er court that under cur­rent law, it should lose. Friedrichs could only win if the Supreme Court over­turned 39 years of prece­dent that date back to the 1977 Abood v. Detroit Board of Edu­ca­tion decision.

When the Court accept­ed Friedrichs, there was some hope that Jus­tice Scalia might pro­vide the crit­i­cal vote to save pub­lic-sec­tor unions. This was not because Scalia had any great love for labor — he did not — but because he under­stood the basic eco­nom­ic the­o­ry of free rid­ers: Just like any oth­er enter­prise, it can be dif­fi­cult for a union to get its mem­bers to pay dues when they can get all the ben­e­fits of the con­tract for free. Scalia had said as much in a 1991 con­cur­rence-dis­sent, and many were hop­ing that he would exer­cise con­sis­ten­cy with Friedrichs.

How­ev­er, the oral argu­ments on Friedrichs last month destroyed any such illu­sions. Jus­tice Scalia, nev­er coy about his beliefs, made it clear that he now believed that fair share fees should be elim­i­nat­ed. Though it’s often dif­fi­cult to divine the Court’s final deci­sion from oral argu­ments, it was plain after the Friedrichs argu­ments that labor would lose.

Accord­ing­ly, labor was scram­bling to fig­ure out how best to run a union in a post-Friedrichs world. Mean­while, con­ser­v­a­tives already had a plan in the works to expand what they saw as a cer­tain win.

Last week, in a lit­tle-noticed case called D’Agostino v. Bak­er, the Nation­al Right to Work Legal Defense Foun­da­tion lost at the First Cir­cuit in their attempt to argue that the First Amend­ment does not allow exclu­sive rep­re­sen­ta­tion of home health­care work­ers. This case sought to expand the Har­ris hold­ing by argu­ing that the First Amend­ment pro­hibits home health­care unions not only from col­lect­ing fees from work­ers who don’t want to pay, but also from bar­gain­ing on behalf of any work­er who does­n’t opt to be a member.

For­mer Supreme Court Jus­tice David Souter wrote the deci­sion for the First Cir­cuit in D’Agnostino, rely­ing heav­i­ly on Abood and its prog­e­ny. If his­to­ry is any indi­ca­tion, Nation­al Right to Work was plan­ning on appeal­ing this case to the Supreme Court. The case pro­vid­ed a glimpse of what the like­ly post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.

In addi­tion, oth­er cas­es, such as Bain v. CTA, that attacked the mem­ber­ship rights of unions but had been thrown out by low­er courts, were like­ly to reappear.

How­ev­er, on Sat­ur­day it was report­ed that Jus­tice Scalia had been found dead. With his absence from the Court, con­ser­v­a­tive plans to attack union dues and mem­ber­ship through Supreme Court chal­lenges may have dis­solved for now.

If Pres­i­dent Oba­ma can get a new jus­tice con­firmed by a Repub­li­can-con­trolled Sen­ate and that jus­tice is per­mit­ted to take part in Friedrichs, then the case will like­ly be decid­ed 5 – 4 in favor of labor. If Repub­li­cans lead­ers made good on their vow to thwart any nom­i­na­tion by Oba­ma, or the new jus­tice does not take part in Friedrichs—either because the Court decides not to set it for rehear­ing or the jus­tice must recuse her­self — then all indi­ca­tions are that the case will be decid­ed 4 – 4. In the event of such a tie, the low­er court rul­ing is upheld — in this instance, the 9th Circuit’s dis­missal of the case.

When the Supreme Court ties 4 – 4, no prece­dent is set. Any­one in labor wor­ried about that out­come in Friedrichs can rest a bit eas­i­er remem­ber­ing that no prece­dent is need­ed here. Abood cre­at­ed the prece­dent in 1977, and Friedrichs was a shame­less ide­o­log­i­cal ploy to over­turn that long­stand­ing prece­dent. In Friedrichs, the CIR did not present the Supreme Court with the typ­i­cal grounds for review: either a a cir­cuit split,” where low­er courts issued con­flict­ing deci­sions, or proof that cir­cum­stances had changed so sig­nif­i­cant­ly since Abood that the Supreme Court need­ed to recon­sid­er its rul­ing. (Jus­tice Stephen Brey­er point­ed to the absur­di­ty of the Court over­rul­ing good case law for no good rea­son when he asked in oral argu­ments whether the Court should also revis­it its land­mark 1803 deci­sion in Mar­bury v. Madi­son, which helped set the very terms of judi­cial review.)

There­fore, unlike oth­er cas­es on the Court’s dock­et, if Friedrichs goes away qui­et­ly, it will stay gone until there is anoth­er con­ser­v­a­tive majority.

With­out a Friedrichs deci­sion that bans fair share fees, it is unlike­ly the Supreme Court would accept D’Agostino, and even less like­ly that it would decide against labor in such a case. Oth­er cas­es attack­ing the mem­ber­ship rules of unions on spe­cious Con­sti­tu­tion­al grounds are sim­i­lar­ly unlike­ly to make it to the Supreme Court. With Jus­tice Scalia’s unex­pect­ed death, con­ser­v­a­tives will have to go back to attack­ing labor the old-fash­ioned way: at the state and fed­er­al legislatures.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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