Labor Opponents Already Have The Next ‘Friedrichs’ SCOTUS Case Ready to Go Under Trump

Moshe Z. Marvit

As Democrats and the labor movement prepare for a possible fight over Trump’s imminent appointment to the Supreme Court, they should recognize that several major labor cases, brought by some of labor’s most persistent enemies, are waiting in the wings. (Photo by Mark Wilson/Getty Images)

The Supreme Court gave unions an unex­pect­ed vic­to­ry last year when it issued a deci­sion in a case that had threat­ened to take away the right of pub­lic sec­tor unions to col­lect dues from work­ers they rep­re­sent. That win may be short-lived. 

Friedrichs v. Cal­i­for­nia Teach­ers Asso­ci­a­tion was meant to be the cap­stone in decades of cas­es that sought to have the courts deter­mine that fair-share fees for pub­lic sec­tor work­ers are uncon­sti­tu­tion­al. Fair-share fees, or agency fees, require work­ers rep­re­sent­ed by a union to pay the por­tion of fees that cov­ers col­lec­tive bar­gain­ing. They seek to bal­ance the worker’s right to dis­sent from the union by relin­quish­ing mem­ber­ship and not pay­ing for activ­i­ties that aren’t relat­ed to col­lec­tive bar­gain­ing, with the union’s right to avoid free rid­ers and not be forced to rep­re­sent a work­er who con­tributes nothing.

The Supreme Court, large­ly through deci­sions writ­ten by Jus­tice Samuel Ali­to, had indi­cat­ed that its 1977 case that allowed for fair-share fees in the pub­lic sec­tor was ripe for a rare over­turn­ing by the Court. It all but invit­ed a chal­lenge. Sev­er­al cas­es were in the pipeline, but Friedrichs took the unusu­al approach of con­ced­ing before each low­er court that it should be dis­missed so that it could move quick­ly to the Supreme Court. Friedrichs faced a hos­tile oral argu­ment before a con­ser­v­a­tive major­i­ty; unions braced for the worst. Then, as the Court was draft­ing its opin­ion, Jus­tice Antonin Scalia died, and with him, so did Friedrichs. The Supreme Court issued a tied 4 – 4 deci­sion affirm­ing the low­er court in March.

How­ev­er, there is anoth­er case in the pipeline that was stayed pend­ing the out­come of Friedrichs. That case, which began as Rauner v. AFSCME, was orig­i­nal­ly brought by the ultra-wealthy Repub­li­can Illi­nois Gov. Bruce Rauner, who — short­ly after tak­ing office — issued an exec­u­tive order plac­ing all fair-share fees in an escrow account, rather than turn­ing them over to unions. But Rauner screwed up a basic part of the case because he didn’t have stand­ing to bring the case.

A fed­er­al judge wrote that Rauner has no per­son­al inter­est at stake. He is not sub­ject to the fair share fees require­ment. Instead, he essen­tial­ly claims to have a duty to pro­tect the First Amend­ment rights of all pub­lic employ­ees in the state … In effect, he seeks to rep­re­sent the non-mem­ber employ­ees sub­ject to the fair share pro­vi­sions of the col­lec­tive bar­gain­ing agree­ments. He has no stand­ing to do so. They must do it on their own.”

To fix the prob­lem, employ­ees filed as inter­venors (“undoubt­ed­ly with the Governor’s bless­ing,” as the judge not­ed), with the back­ing of the Nation­al Right to Work Legal Defense Foun­da­tion and the Lib­er­ty Jus­tice Center.

Janus v. AFSCME, named after one of the work­ers, is pur­su­ing the same strat­e­gy as Friedrichs in try­ing to get to the Supreme Court quick­ly. The Janus plain­tiffs filed their sec­ond amend­ed com­plaint in July, stat­ing that the Supreme Court’s 1977 Abood v. Detroit Board of Edu­ca­tion case, which per­mit­ted fair-share fees, remains good law, and all but invit­ed the Dis­trict Court in the North­ern Dis­trict of Illi­nois to dis­miss their com­plaint. The Dis­trict Court did so, and in their appeal to the Sev­enth Cir­cuit Court of Appeals, the plain­tiffs sim­i­lar­ly state that their case must be dis­missed. The goal, of course, is to get the case in front of the Supreme Court just as a Don­ald Trump appointee to the Court is seated.

Seat­tle Uni­ver­si­ty School of Law pro­fes­sor Char­lotte Gar­den explains that this strat­e­gy also allows the case to go up with­out a fac­tu­al record. This means that there is no record that the unions can point the jus­tices to in order to show the impor­tance of agency fees.”

In Friedrichs, Jus­tices Ruth Gins­burg and Stephen Brey­er tried to give the union’s attor­ney the oppor­tu­ni­ty to state what he would have put in the record if he had had the oppor­tu­ni­ty to do so. But, as Gar­den explains, being asked to make a prof­fer before the Supreme Court is tricky with­out the abil­i­ty to engage in discovery.”

The Janus case is almost iden­ti­cal to the Friedrichs case in that both are premised on the idea that there is no line in the pub­lic sec­tor between polit­i­cal and non-polit­i­cal activ­i­ty. Con­ser­v­a­tives jus­tices have firm­ly embraced this ratio­nal, as was evi­dent dur­ing the Friedrichs oral argu­ment when Chief Jus­tice John Roberts chal­lenged California’s attor­ney to give his best exam­ple of some­thing that is nego­ti­at­ed over in a col­lec­tive bar­gain­ing agree­ment with a pub­lic employ­er that does not present a pub­lic pol­i­cy ques­tion.” The attor­ney respond­ed that mileage reim­burse­ment rates were such an exam­ple. Roberts shot back, That’s mon­ey. That’s how much mon­ey is going to have to be paid to the teach­ers. If you give more mileage expens­es, that costs more money.”

If every­thing that a pub­lic sec­tor union does is polit­i­cal, then it is a much short­er line to find that a work­er should not have to pay any part of the costs of col­lec­tive bar­gain­ing. This would be a very wor­ri­some con­clu­sion for unions, which must do what they can now to stop such an out­come from happening.

As Democ­rats and the labor move­ment pre­pare for a pos­si­ble fight over Trump’s immi­nent appoint­ment to the Supreme Court, they should rec­og­nize that sev­er­al major labor cas­es, brought by some of labor’s most per­sis­tent ene­mies, are wait­ing in the wings. Sen­a­tors should ques­tion nom­i­nees about their view of Abood and oth­er Supreme Court prece­dents that pro­tect pub­lic employ­ees’ labor rights. And if labor has any sway with­in the Demo­c­ra­t­ic Par­ty, it should make it clear that these issues should be dis­qual­i­fy­ing for any new appoint­ment to the Court.

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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