Bench Memos

Friedrichs Oral Arguments: A Likely Win for the First Amendment

Teachers can count on a win in Friedrichs v. California Teachers’ Association, if the justices’ positions remain consistent with their questions at oral argument this morning.

The case asked whether the Court should overrule Abood v. Detroit Board of Education, at 1997 case that allowed public unions to charge fees of non-members.  The Abood decision said unions could separate out political expenses like lobbying and only charge non-members and agency fee to cover the costs of collective bargaining to prevent free-riding.  But when public employees are at issue, Petitioners claim, all bargaining is inherently political because the wages and terms of employment like tenure and class size are all controversial policy questions.  Abood has been widely criticized as out of step with First Amendment law that is generally very hostile to compelled speech and it has been undercut in the past few years by cases like Knox v. SEIU and Harris v. Quinn.  After today’s arguments, I predict the First Amendment anomaly of Abood will end this term.

Petitioners, a group of California teachers who aren’t members of the union, were represented by Supreme Court veteran Mike Carvin who came off as smart, confident, and able to stand up to the repeated pressure of the Court’s four liberals.  Those justices took turns attempting to find a chink in the Petitioners’ armor, focusing particularly on stare decisis.  They claimed Abood was a longstanding case (Justice Breyer repeatedly intoned, “forty years!”) and that overturning it would unsettle the law and throw union contracts into confusion.  Carvin responded by pointing to successful public employee unions where agency fees are not mandated and by explaining how Abood was simply inconsistent with other precedents and met the normal standards for overturning an incorrect case.

Respondents’ argument time was shared by attorneys for the State of California, the unions, and the Solicitor General on behalf of the United States as an amicus.  As is often the case, it seemed to me that little was gained by dividing the time.  The Solicitor General was able to add some institutional heft of having the United States arguing in favor of stare decisis, but the Chief Justice got the California lawyer to state that their position didn’t substantially differ from that of the unions.

Going into the case there were a range of potential swing votes to watch for.  Some people thought Justice Scalia would go soft based on concerns he had raised in other cases about free rider issues.  He didn’t.  He embraced the idea that public unions are inherently political and seemed confident that unions would be able to survive even without the ability to collect fees from non-members.

Others were worried about the Chief Justice because they feared he would be reluctant to overturn prior precedent.  After all, would he want a case citing Citizens United for the principle of when the Court should correct itself?  Apparently Carvin’s invocation of that much-maligned decision didn’t faze him; he seemed solidly on the teachers’ side.  The Chief asked lots of tough questions of the Respondents’ attorneys, and even forced California’s lawyer to concede that everything the unions bargain over is inherently political.

The final potential swing vote was Kennedy.  He had joined earlier cases like Harris v. Quinn that undermined Abood, but his vote is never one to be taken for granted.  However, his questions again and again took the teachers’ side.  Respondents’ hearts must have sunk when Kennedy said that the objecting teachers weren’t free riders but “compelled riders for issues on which they strongly disagree,” and waxed eloquent about teachers “devoted to the future of America, to the future of our young people” who nonetheless vehemently disagree with the unions.  He even responded to claims that overruling Abood would lead to less state efficiency with, “we could assume that a State is always benefitted and – and is more efficient if it can suppress speech.” If your potential swing vote thinks you’re compelling and suppressing speech, you’re in trouble.

Nobody was worried about Justice Alito’s vote going into the argument. After all, he wrote the decision in Harris that emboldened Petitioners to bring this case in the first place.  His questions were tough as usual, and in particular highlighted reasons Abood had been undermined by later cases.

There was a second question presented about whether the First Amendment required an opt-in rather than an opt-out regime for non-chargeable political expenses.  While there was some discussion of the issue and I think the teachers would win if that were the only issue in the case, it seems the Court will decide the issues squarely on the first question and overrule Abood.

The transcript for the arguments is now up online, so you can read the whole thing here

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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