Law & the Courts

Supreme Court to Friedrichs: Until We Meet Again

(Mark Wilson/Getty)
The question of whether unions can supersede employees’ First Amendment rights goes unresolved.

Today the United States Supreme Court issued its decision in Friedrichs v. California Teachers Association. This case asks whether forcing a public-school teacher to choose between paying agency fees to a union that supports speech with which she disagrees or subjecting herself to termination violates the First Amendment.

It is worth pausing to reflect on the fact that the decision occurred today. No one who heard the oral arguments in January could have predicted a decision by the Court in March. Indeed, seasoned Court watchers predicted an end-of-term decision in favor of the plaintiff, Rebecca Friedrichs, and her fellow teachers.

But then, no one could have anticipated the sudden passing of Justice Antonin Scalia either.

And so, given that Scalia’s pen was needed among the scribes up in heaven, today’s decision was something of a “non-decision” — a 4–4 split that in one single sentence affirmed the judgment of the lower court in favor of the teachers’ union.

RELATED: Why Friedrichs Matters

The California Teachers Association issued a statement claiming that “the decision recognizes that stripping public employees of their collective bargaining rights in the workplace is a step in the wrong direction.”

Ummm, no.

Such statements make me worry even more about public education.

#share#First, the case didn’t involve stripping collective-bargaining rights; it involved First Amendment rights. Had Rebecca Friedrichs won, workers would still be able to organize to bargain collectively. Indeed, as my organization’s brief to the Court in Friedrichs demonstrated, respecting First Amendment rights for workers would not mean an end to unions — as evidenced by the fact that union membership increased in both Indiana and Oklahoma after those states enacted right-to-work laws, which prohibit workers from being fired for refusing to pay “fair share” fees (partial dues required to be paid by employees who choose not to join a union).

RELATED: SCOTUS Should Scuttle Mandatory Government-Union Dues

Second, the decision didn’t recognize anything, other than the lack of a fifth vote for either side. As a matter of law, the decision has precisely zero precedential value.

What, then, is the status quo to which the law returns? The Supreme Court affirmed the judgment of the lower court, which relied on Abood v. Detroit Board of Education — the 1977 Supreme Court decision allowing compulsory collection of fair-share fees from public-sector employees.

The status of Abood as a precedent is shaky at best. The Supreme Court in two recent cases has raised serious doubts about its continuing vitality.

But the status of Abood as a precedent is shaky at best. The Supreme Court in two recent cases has raised serious doubts about the continuing vitality of Abood. The Court all but gave an invitation to plaintiffs to bring a case, and then decided to hear the Friedrichs case despite the lack of a circuit split or a lower court’s determination that a federal law is unconstitutional — traditionally the two most reliable roads that will get you to discretionary Supreme Court review. The only other serious path to the Supreme Court, and the one that is much more difficult to successfully travel, is the one that Friedrichs took: error correction. But the Court really wanted to hear this case, and it very well might wish to do so again.

And the Court will have its chance. Rebecca Friedrichs’s attorneys at the Center for Individual Rights declared today that they will seek rehearing by the Supreme Court.

Will the Court hear the case? The answer will likely depend on when the new justice is confirmed (a nomination by the next president probably would not be able to participate in the case until the fall term of 2017) and who the new justice is.

#related#That the Friedrichs case occurs in 2016 makes the election even more important — that is, if the Senate adheres to the position that no Supreme Court nominee should be considered until after the election.

During a year in which so much rides on the presidential election, today the Supreme Court made clear that the First Amendment rights of public-sector employees may well depend on that election too.

As this Supreme Court term continues, we may see many other rights go unprotected. The lesson from today’s decision is not that we should hurry to fill Justice Scalia’s seat; rather it is that a justice in the mold of the late great Antonin Scalia must be confirmed to the Court to protect these precious constitutional rights.


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