Conservative justices on the Supreme Court on Monday appeared deeply skeptical of requiring public employees to pay union dues as a condition of their employment.
Justice Anthony Kennedy, who could cast the critical vote in the case — known as Friedrichs v. California Teachers Association — expressed doubt about a law in California that requires public sector workers to opt out of paying union fees for collective bargaining.
But Kennedy said that under that logic, there would be nothing to stop California from requiring every state employee to donate 1 percent of his or her salary to the governor’s election campaign.
“No one thinks, realistically, that's a voluntary decision to give money,” he said. “There's only one purpose behind that kind of requirement, which is to inflate the governor's political war chest, just like the only purpose behind this is to, through inadvertence and neglect, inflate the union's war chest by people who really have not made a voluntary decision to do so.”
The lawsuit before the high court — filed by 10 teachers in California, including Rebecca Friedrichs, and the Center for Individual Rights — poses a major threat to the political power of labor unions, which have long been allies of Democrats.
Union membership is heavily concentrated in the public sector, giving the labor movement a stronghold of support.
Should the high court rule against fee requirements, the financial power of unions could rapidly erode.
The plaintiffs in the case specifically argue that requiring every public schoolteacher in California to annually renew, in writing, his or her objection to subsidizing the political agenda of the California Teachers Association violates their First Amendment rights.
“As to requiring people to give money ... they don't wish to give, Thomas Jefferson said that was sinful and tyrannical. James Madison famously said requiring three pence is the thing,” said Friedrichs’s attorney, Michael Carvin. “So it's not at all something that we've invented.”
Chief Justice John Roberts appeared to agree with Carvin, who argued that the court should at least require unions to have employees affirmatively consent to union fees instead of requiring them affirmatively opt out of them.
David Frederick, the attorney representing the teachers association, argued it’s easy for a person to check a box opting out of union fees, but, Roberts countered, “It’s also easier for a person to check a box to say they opt in.”
The problem before the court, Roberts said, is whether individuals can be compelled to support political views that they disagree with.
Though unions have argued they will lose membership if employees are forced to opt in rather than out, Kennedy said the unions should be able to convince employees to join.
Liberals on the court, meanwhile, appeared to have qualms about overruling a 1977 decision known as Abood v. Detroit Board of Education, which upheld requiring nonunion members to pay fees for collective bargaining activities.
Justice Elena Kagan told Carvin that he carries a heavy burden in asking the court to overrule Abood.
“What special justification are you offering here?” she asked.
Carvin responded that Abood should be overruled because it’s erroneous, drawing a sharp response from liberal Justice Stephen Breyer.
“I can't find a basic principle there that's erroneous, as in these major cases that we have overruled,” he said.
Though the California Teachers Association has argued that it could not survive without these union fees from nonmembers, the union’s attorney, California Solicitor General Edward Dumont, acknowledged during oral arguments that he could not prove that to be the case.
“So there's a presumption in the question posed, which is that it can survive, but we don't know that factually?” Justice Sonia Sotomayor, a member of the court's liberal wing, asked Dumont.
Dumont said the state would prefer not to take the risk.
But Justice Antonin Scalia said it’s the job of the opponents to show that they need the nonmember fees to survive.
“You're the one that's saying we need to do this because otherwise it won't survive,” Scalia said. “It seems to me the burden is on you to say why that’s so.”
In a statement following the 80-minute arguments Monday, the National Consumers League said the case was “handpicked by special, powerful anti-worker interests” who want the court to overrule the longstanding precedent of Abood.
“The National Consumers League believes that Abood is based on the constitutional principle that those covered by a union contract should be required to pay their share of fees,” the organization said. “When employees elect a union to represent them, everyone who benefits from a negotiated contract should contribute to the costs of securing that contract, even those who might not agree with every union position.”
The Small Business Legal Center, however, disagreed.
“The First Amendment protects freedom of association,” Executive Director Karen Harned said in a statement.
“Forcing an employee to associate with a union and surrender part of her income to support its political activities is a clear violation of that constitutional protection.”
Updated at 2:13 p.m.