All eyes will be on Justice Anthony Kennedy again this term as the only question after yesterday's oral arguments on public employee union dues before SCOTUS is whether or not he'll be the fifth vote to sink union agency fees.
In a closely watched case brought by 10 California teachers, the court’s conservative majority seemed ready to say that forcing public workers to support unions they have declined to join violates the First Amendment.
A ruling in the teachers’ favor would affect millions of government workers and culminate a political and legal campaign by a group of prominent conservative foundations aimed at weakening public-sector unions. Those unions stand to lose fees from both workers who object to the positions the unions take and those who simply choose not to join while benefiting from the unions’ efforts on their behalf.
Under California law, public employees who choose not to join unions must pay a “fair share service fee,” also known as an “agency fee,” typically equivalent to members’ dues. The fees, the law says, are meant to pay for collective bargaining activities, including “the cost of lobbying activities.” More than 20 states have similar laws.
Government workers who are not members of unions have long been able to obtain refunds for the political activities of unions like campaign spending. Monday’s case, Friedrichs v. California Teachers Association, No. 14-915, asks whether such workers must continue to pay for any union activities, including negotiating for better wages and benefits. A majority of the justices seemed inclined to say no.
Collective bargaining, Justice Anthony M. Kennedy said, is inherently political when the government is the employer. “Many critical points are matters of public concern,” he said, mentioning issues like tenure, merit pay, promotions and classroom size.
The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile on Monday.
”The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” he said.
If state laws to collect agency fees are rendered unconstitutional, then public employee unions will suffer, which of course is the point, but the view that everything a public employee union says or does is inherently political would ironically grant it more power under recent campaign finance reform rollbacks in a post-Citizens United world, yes?
Perhaps that's the next step, to call public unions political tools that somehow have to be invalidated because their "money as free speech" does not deserve the same freedoms of corporations. That's probably the angle Scalia's writings would supposedly prevent, but then again we know as of recent rulings that Scalia will gladly ignore his own precedent when it's politically expedient.
Still, it stands as I've said before that guessing SCOTUS is a crapshoot at best.