Moshe Marvit’s Six “Friedrichs” Takeaways

On Monday the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a lawsuit that targets Abood v. Detroit Board of Education, a nearly 40-year cornerstone of labor-management relations. At stake is the principle that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for the services that the union is required by law to provide all members. 

Capital & Main asked labor attorney and Century Foundation fellow Moshe Marvit, who studied Monday’s transcripts, for his assessment of the case, whose ruling is expected by June. 

Capital & Main: Were there any surprises in Monday’s arguments?

Moshe Marvit: There had been some hope that [Justice Antonin] Scalia might be a little bit more open to California’s and the union’s arguments, because of his dissent in Lehnert v. Ferris Faculty Association, but there was no sign of that here, and I think it was actually the opposite. And in some of his questions, he seemed to not understand what the purpose of fair-share fees was. He asked, “Well, certainly you could convince people to join the union. Why do you need [fair-share]?” But that seemed disingenuous. I mean, he understands economics well.

C&M: Is Abood in trouble?

Marvit: It’s more likely than not that they’re going to overturn Abood, and I would say it’s probably more a question of how broad their decision is. It didn’t seem like anybody was interested in the opt in/opt out question, which was the second question of the case. The only hope for the unions is that the approach by the Center for Individual Rights, of rushing this through the courts, backfires, because the [lower court] record is so slim here. Because there wasn’t anything in the record really, the court could find it hard to really write a decision. But I doubt that will happen here.

C&M: There was speculation that a swing vote in favor of Abood might rest with Justice Antonin Scalia or Justice Anthony Kennedy. Were there any surprises for you from Kennedy and Scalia?

Marvit: From his questions it seemed like [Scalia] was pretty hostile to the claim. Maybe the surprise from Kennedy is that, reading his questions, you just got the sense he had no idea how a union works or what’s involved here. That was sort of a surprise with a number of the conservative justices, where they assumed that if people didn’t want to pay dues, they somehow disagreed with the union in some fundamental political sense. And that’s just simply not the case.

C&M: Given that the conservative faction seemed to be ignoring the lower court rulings, was it evident on what the other conservatives based their stance?

Marvit: I can’t imagine Thomas would vote in favor of the union, but then he didn’t ask anything. I think most of them had this presumption, first, that everything a public-sector union does is political. That there’s no such thing as a nonpolitical action by the public-sector union. I think it was the attorney for California who argued, “Well, what about these sort of prosaic things like mileage reimbursement rates?” [Maybe] it was the Chief Justice who said, “Well if it’s about how much money they’re going to pay them, and that comes out of the budget — that’s an enormously political issue.” I mean it just seemed like nothing [union members] can do, whether it’s on class sizes or recess or pay or benefits or anything is non-political.

C&M: Did anything surprise you about the questions coming from the four liberal justices on the court?

Marvit: Some questions from the liberal wing of the court were somewhat surprising and maybe showed how much of a lost cause they saw this as. One of the liberal justices was questioning whether the union wasn’t in fact maybe an arm of the state — probably trying to get [at] some sort of government speech exception [for Abood], because [the liberal minority] almost recognized that the conservative majority was going to rule in a certain way. The questions seemed a little bizarre in the context of them just trying to find some way in which these older cases aren’t overturned. At one point Justice [Stephen] Breyer brought up the question of whether it’s time to relook at Marbury v. Madison in terms of going back and overturning any precedent that you might have an issue with. And, you know, even on the question of which side should have to bear the burden attacking that precedent, the judges couldn’t seem to agree.

C&M: If Abood is struck down and agency fees are a violation of the First Amendment, do you see the decision opening the door to challenging the constitutionality of the speech underlying the fees?

Marvit: I think so. I mean it’s a good point — they could next argue that by collectively bargaining, [the unions] somehow violate workers’ speech rights. I mean that’s really what’s strange about this. I think that certainly … an attack on actual speech is probably next, as well as a whole bunch of other lower-level cases at the public-sector agencies in the different states about how they have to deal with people who do want to be members and don’t want to be members. Where do you draw the line exactly, and how do they administrate [it]? But yeah, I think the unions are going to keep getting attacked on the speech issue. I don’t think it ends here.