Right-to-work takes a timeout in the Supreme Court
© Anne Wernikoff

Within hours of the news of Supreme Court Justice Antonin Scalia's death, Republicans vowed to block any candidate that President Obama nominates to the Supreme Court and argued that the appointment is the prerogative of whoever wins the next election. Commentators predicted a long and acrimonious battle to replace Scalia. Whatever the outcome of that contest, the conservative legal attack on unions, Friedrichs v. California Teachers Association, is now a historical oddity.

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Friedrichs involved a teacher who challenged the mandatory payment of union dues under a contractual security clause. She lost in the lower federal courts because, in the opinion of the Ninth Circuit Court of Appeals, "the questions presented in this appeal are so insubstantial as not to require further argument, because they are governed by controlling Supreme Court and Ninth Circuit precedent." That precedent included Abood v. Board of Education, a 1977 opinion which upheld compulsory dues for collective bargaining purposes against a First Amendment claim. It was affirmed in 1986 in Chicago Teachers Union v. Hudson.

Justice Samuel Alito, along with his four supporting votes, mounted a sustained campaign to overrule Abood and Hudson. Following oral arguments in Friedrichs last month, the smart money was on Alito and his brothers in arms. According to The Atlantic, "the conservative majority has twice signaled that it is tired of public-employee unions and wants a chance to radically rewrite the law in this area." Alito, Roberts, Scalia, Thomas and Kennedy made a run at banning public sector dues in the 2012 case of Knox v. Service Employees International Union and came up short.

Alito framed the Knox case as an issue of "whether the First Amendment allows a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union's political and ideological activities." Limited to that narrow question, a 7-2 majority ruled in favor of the plaintiffs. The Friedrichs litigation expanded the issue to include any payment of dues to which an objector had not expressly consented or "opted into."

Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred in Knox because the defendant union failed to give notice of the special assessment and denied members their protected rights of due process. But Sotomayor accused the majority of trying to make up new rules permitting objectors to decline any dues unless they had opted in to payments. She said that Alito wanted to create a "novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered." Justices Stephen Breyer and Elena Kagan dissented on the ground that existing procedures imposed on unions adequately protected members' interests.

Given the court's predilections, how would Friedrichs have been decided if Scalia had participated in the decision? Because he upheld public sector union dues payments in the 1991 decision in Lehnert v. Ferris Faculty Association, some legal experts thought Scalia would do so again. What he actually said in his concurrence in Lehnert is that for a union to collect mandatory dues, those dues must be directed toward demonstrated collective bargaining costs. To protect against coerced use of dues for political ends, Scalia wrote that "a union cannot constitutionally charge nonmembers for any expenses except those incurred for the conduct of activities in which the union owes a duty of fair representation to the nonmembers being charged." Proving the difference between a public union's political activity and collective bargaining is an untenable proposition because they operate in a politicized environment, as prominent legal scholars pointed out many years ago.

The "opt-in" versus "opt-out" principle is no longer in play since the constitutional theory is effectively defunct. A split in the case will confirm the Ninth Circuit's repudiation of the claim as being inconsistent with established precedent. The appeals court's cursory dismissal of Friedrichs's complaint demonstrates that it never had much doctrinal substance to begin with, and while Republicans may stall the president's nominations to the Court, Alito's marvelous adventure in a jurisprudential fantasyland has ground to a halt.

No doubt the well-financed litigation machine of union busters like the Koch brothers and the American Legislative Exchange Council will fire up again in the future. They have ample resources to search out another plaintiff who accepts the benefits of union representation but resents the costs of paying for it. If Democrats win the presidency in 2016, however, the dream of a union-free public sector mandated by the Constitution may be dead and buried for some time.

Hogler is professor of labor law, labor relations and human resource management at Colorado State University.