When the Supreme Court of the United States (SCOTUS) delivered its March 29 ruling in Friedrichs v. California Teachers Association, the announcement of a 4 to 4 deadlock was something of an anticlimax. Ever since the sudden February 12 death of conservative Justice Antonin Scalia, SCOTUS watchers had anticipated just such an impasse. Based on Scalia’s questions when the case was argued before the Court a month before his passing, the late justice appeared to be the fifth vote for a decision that would have overturned 40 years of precedent – in effect, imposing “right to work” status on all those working in the public sector and eviscerating their unions. Without this vote, the four remaining conservative justices failed to constitute a majority.
In the days following this decision, observers across the political spectrum described the judicial deadlock in Friedrichs as a victory for public sector workers and their unions (at least for the moment). A more definitive resolution of the issue awaits Senate confirmation of Scalia’s successor, whether President Obama’s pick, Judge Merrick Garland, or someone yet to be named by the next president.
But, so far, what has been missing from most media commentaries is a recognition of the immediate political import of the Court’s impasse, and most especially, its impact on the 2016 election campaign. To understand the full political dimensions of Friedrichs – how the Court’s conservative majority seem to have been prepared to use the case to sway the election – a brief review of the case is necessary.
Friedrichs in the Making
On June 30, 2014, the very last day of its 2013-14 term, the Supreme Court delivered what the New York Times described as its “first salvo in the war against unions.” Writing for the majority in a 5 to 4 decision in Harris v. Quinn, Justice Samuel Alito not only struck down the use of “fair share fees” (sometimes called “agency fees”) for unionized home daycare workers, but also invited challenges to the Court’s own 40-year old precedent, Abood v. Detroit Board of Education, the 1977 case which had established the constitutionality of such fees in the public sector.
In Abood, a 6 to 3 Supreme Court majority ruled that individuals covered by a public sector collective bargaining agreement could not be required to be members of the union or financially to support that union’s political advocacy on behalf of its members. Should an individual choose not belong to the union, the Court decided, she would still have to pay a discounted “fair share fee" for the non-political representation that the union is still obligated to provide, as a matter of law, to members and non-members alike, including the benefits of collective bargaining agreements and the enforcement of all workers’ due process protections. The Abood ruling would secure the First Amendment rights of individuals, the Court reasoned, while ensuring that the union’s ability to secure the common good of the employees would not be undermined by “free riding.” In Harris v. Quinn, Alito took what Justice Ruth Bader Ginsburg described as “potshots” at Abood, sending a signal that the conservative majority would welcome a case which challenged this precedent.
The Center for Individual Rights (CIR), a right-wing legal advocacy organization* that has been in the forefront of attempts to dismantle the Voting Rights Act and affirmative action, quickly jumped on Alito’s invitation. As plaintiffs in a legal challenge to Abood, the CIR recruited the Christian Educators International Association, a fundamentalist religious organization that opposes teacher union support for sex education, women’s reproductive rights and LGBT rights, and ten similarly minded individuals, including Rebecca Friedrichs. CIR sought the fastest possible track for the case, asking lower courts to forego the usual evidentiary hearings and issue summary rulings against its own petition in order to speed its passage to the Supreme Court.
SCOTUS Takes Up Friedrichs
On the last day of its 2014-15 term, the Supreme Court granted a writ of certiorari, indicating that it would hear the Friedrichs petition to overturn lower court rulings and its own Abood precedent.
The established rules of jurisprudence dictated that SCOTUS should quickly have ruled against the Friedrichs plaintiffs. Not only were they asking the Court to overturn its own 40-year old precedent, but asking to do so without a court record that documented changes in the conditions which had been in place when Abood was originally decided; such a record is commonly considered to be a prerequisite for the Court overturn one of its own precedents. Moreover, in 1991, while sitting on a lower federal court, Justice Scalia had moved to uphold the Abood precedent in Lehnert v. Ferris Faculty Association. At that time, Scalia wrote that:
(w)here the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost… What is distinctive, however, about the “free riders” who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry – indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.
The tenor of the January 11 oral arguments, however, left little hope that the conservative Supreme Court majority would respect the established rules of jurisprudence or its own precedents, or that Justice Scalia felt bound by his unequivocal 1991 opinion. The questions from four of the five conservative justices, including Justice Scalia, were overtly hostile to “fair share” fees, public sector unions and Abood. As is his usual practice, Justice Thomas asked no questions, but there was no doubt about his vote. Public sector working people and their unions began to prepare for the worst, expecting that the Court would issue a negative decision on the last day of its 2015-16 term, as it had in its two previous years.
In the weeks between the oral arguments and Scalia’s death, there were troubling signs that the Court majority was prepared to extend its judicial activism beyond even its current wide ranging frontiers. Sources close to the Court passed the word that the five conservative justices were pushing to deliver a decision quickly, and that there was consideration of going beyond a prohibition of “fair share fees” and requiring public sector unions to sign up all of their current members anew. In a case that was already quite controversial, with much potential damage to the Court’s standing and legitimacy, why would the conservative majority not be content with the extraordinary step of overturning Abood and imposing a “right to work” ban on “fair share fees” in the public sector? Why the need to push even further?
The Political Calculus of the Conservative Justices
The four public sector unions that would have been most affected by a negative decision in Friedrichs – the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), the National Education Association (NEA) and the Service Employees International Union (SEIU) – are not just the four strongest unions in an American labor movement that has been weakened by decades of decline in the ranks of private sector unions. They are also the four unions with the most effective political operations, with the greatest capacity to mobilize their members and put “boots on the ground” in electoral campaigns. If they were sidelined in the 2016 campaign, the voice of organized working people would have been greatly diminished, and the Republican Party and economic elites would have gained a considerable electoral advantage.
If the Supreme Court had moved quickly in Friedrichs and required public sector unions to re-recruit all of their members, these unions would have faced an unprecedented existential challenge. When “right to work” legislation was passed in 2012 in Michigan, until then a union stronghold, massive amounts of outside right wing money flowed into a campaign to convince members that they should drop out of their unions. A similar effort would certainly have been mounted nationwide in the wake of a negative Friedrichs decision. The public sector unions would have had no choice but to focus their energies on signing up millions of members anew, rather than on organizing and mobilizing those members for the 2016 election. Before Scalia’s death, therefore, Friedrichs was about to become the fourth major case – following Bush v. Gore, Citizens United v. FEC, and Shelby County v. Attorney General Holder** – in which the conservative majority of the Court would use its power to intervene directly in the electoral process and secure an important advantage for the political right.
How great an impact would such a decision have had on the political process and the 2016 election campaign? I will take up this question tomorrow in a second post on this subject.
** Shelby County v. Attorney General Holder is the 2013 case that overturned the core of the Voting Rights Act and gave full vent to the passage of voter suppression laws.