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Public Unions in Peril After California Teachers Union Oral Args

Things aren't looking too good for public sector unions after oral arguments in Friedrichs v. California Teachers Association. The case involves ten California teachers who aren't members of the public school teachers' union. While those teachers benefit from the higher wages and better conditions bargained for by the union, they object to the California law which requires them to pay "fair share" fees to the teachers' union to cover the cost of collective bargaining, arguing that the fees violate their First Amendment rights.

At oral arguments on Tuesday, many of the justices seemed set to agree with the teachers, ready to overrule long standing precedent that is relied on by millions of public sector workers across more than 20 states.

Forced Speech or Free Ride?

California law designates the California Teachers Association as the exclusive representative of teachers for the purposes of collective bargaining. The public union negotiates with the state for higher pay, better conditions, stronger benefits, and the like. (Relatively speaking -- these are public school teachers in California, after all, and they're some of the lowest paid in the U.S.)

But teachers, like the ten suing here, aren't forced to join the union, despite benefiting from union-negotiated contracts. In order to prevent "free riding," the state requires non-union members to pay a "fair share service fee," which goes to union activities like collective bargaining and lobbying.

The teachers, headed by lead plaintiff Rebecca Friedrichs and backed by conservative foundations, argue that California's fee violates their First Amendment rights by forcing them to subsidize speech -- the union's -- that they don't agree with.

The Supreme Court approved of public sector "agency shops" like California's in its 1977 decision in Abood v. Detroit Board of Education. Today, Justice Kagan noted at oral arguments, as many as 10 million employees are covered by Abood-style agreements. But the Supreme Court indicated, in its five-to-four 2014 ruling in Harris v. Quinn, that it could be ready to overturn Abood and strike down public union fair share fees.

Unlikely to Be Saved by Stare Decisis

During oral arguments, it seemed like the substantive argument regarding Abood and public union fees had largely been decided. The Court's four liberal justices would vote to maintain the status quo; the four more conservative justices, plus Justice Kennedy, would likely vote to overrule Abood.

Tellingly, the liberal justices spent little time discussing the heart of the matter, the constitutionality of public union fair share fees, and focused instead on stare decisis. Stare decisis is the doctrine that urges adherence to precedent, in order to maintain consistency and stability in the law, absent some compelling reason to overrule past decisions.

Justice Kagan pressed the petitioners on what special circumstance applied. She was not convinced when Michael Carvin, arguing on behalf of the petitioners, indicated that Abood can be overruled more easily since it denied a right, rather than affirmed one. Justice Kagan responded, saying "I find that an extremely difficult concept to understand. It would take away stare decisis effect from numerous -- I mean, just hundreds, thousands of our decisions." Justice Breyer chimed in as well, noting that "there are dozens of cases where this Court has denied individual rights. And you're saying all those cases are now free of any stare decisis inhibition."

We'll have to wait and see whether the stare decisis strategy works, but it seems improbable. Justice Kennedy is likely to be the swing vote, as always, and at numerous points he expressed concern that agency fees were being used to "silence" non-union teachers.

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