Mehlhorn: How the Unions Lost Three Swing Votes and Pushed the Supreme Court Towards Historic Friedrichs Ruling

The lawyers representing the teachers union were openly saddened. This was evident by simply standing behind them on the long line to collect their coats at the United States Supreme Court. During this wait, they had ample time to reflect on their colleagues’ oral arguments in the Friedrichs v. California Teachers Association case.

With each justice and argument, their hopes of preserving compulsory union dues in the public sector had crumbled.

"I wish we had just admitted that point, so that we could have salvaged something," one remarked.

"That’s it then," a second concluded.

"I’m feeling so down," chimed in a third.

For those who are just catching up, you can refer to The Seventy Four’s text and video primer on the nine important things to know about Friedrichs. In summary, California law mandates all teachers to pay yearly dues to the teachers union, regardless of whether they are members or not.

Experienced teacher Rebecca Friedrichs believes that the policies supported by the union are detrimental to students and teachers. She argues that being compelled to financially support the union’s efforts in promoting such policies violates her First Amendment right to freedom of speech. She has petitioned the Supreme Court to reverse their previous 1977 decision in Abood v. Detroit Board of Education, which allows these fees.

As the oral arguments approached this week, the attorneys representing the union knew they were in trouble. In the 2014 Harris v. Quinn case involving home health care workers, a majority of five justices did not explicitly overturn the 1977 Abood decision, but showed uneasiness with it.

Associate Justice Samuel Alito’s opinion, joined by Chief Justice John Roberts and Associate Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, states that:

The analysis of the Abood Court is questionable for various reasons. Some of these were observed or apparent at the time of the decision, but many have become more evident and concerning in the years since then.

Abood failed to recognize the disparity between the core union speech that is involuntarily funded by dissenting public-sector employees and the core union speech funded involuntarily by their counterparts in the private sector.

Abood failed to acknowledge the conceptual difficulty of distinguishing between union expenditures for collective bargaining and those made to achieve political goals in public-sector cases. In the private sector, this line is clearer. Collective bargaining pertains to the union’s interactions with the employer, while political advocacy and lobbying are directed at the government. However, in the public sector, both collective bargaining and political advocacy and lobbying are aimed at the government.

Abood did not anticipate the extent of the practical administrative issues that would arise in classifying public-sector union expenditures as either "chargeable" (expenditures for "collective bargaining, contract administration, and grievance adjustment purposes," as mentioned in Abood) or nonchargeable (i.e., expenditures for political or ideological purposes). In the years following Abood, the Court has frequently struggled with this matter.

In light of this section of Harris and the legal reasoning of the justices involved, both petitioner Friedrichs and respondent CTA were aware that some of the Friedrichs votes were essentially predetermined. Respondents could rely on the votes of Justices Breyer, Ginsburg, Sotomayor, and Kagan. Petitioners could count on the votes of Justices Thomas and Alito.

Respondents were hopeful that they could convince Justices Roberts, Kennedy, or Scalia from the Harris majority to side with them. Roberts and Kennedy are hesitant to overturn previous rulings and might choose to uphold Abood even if they disagree with it. Scalia, on the other hand, has previously shown openness to some of the arguments made by the respondents in the cases Lehnert v. Ferris Faculty Ass’n (1991) and Rutan v. Republican Party of Illinois (1990). If all else failed, respondents hoped to at least secure an opinion with caveats that could be exploited in practice and potentially extended by a future majority in the court.

In terms of achieving these objectives, the oral arguments were a complete catastrophe for the respondents.

"A significant setback"

During the arguments, Justice Alito, supported by Justices Kagan and Breyer, questioned whether the petitioners’ claim was strong enough to justify overturning a previous precedent. This line of argument was primarily directed towards Justices Roberts and Kennedy, who often uphold prior decisions based on the principle of stare decisis, which involves judges deferring to their predecessors even when they disagree.

Breyer’s most extensive and courageous effort on this matter took place during the following conversation with the petitioners’ lawyer, Michael Carvin. Throughout the exchange, Breyer repeatedly looked at Roberts and Kennedy, conveying meaningful messages.

BREYER: It’s evident that there are valid arguments on both sides. When we consider this, it was originally a compromise made four decades ago. However, that was a long time ago. It was forty years ago. Forty years have passed. Suppose we say that Marbury v. Madison was incorrect… [Overruling Abood] would undoubtedly impact the legal profession. It would particularly affect the integrated bar and student fees at universities. It would require us to overturn numerous other cases, at least two or three that I can identify, and that is a substantial matter.

CARVIN: Indeed, it is.

BREYER: So, from the perspective of this Court’s role in society, what can you say about the consequence of overruling a compromise that has lasted reasonably well for over four decades, despite not being perfect? I suppose people could easily overturn our decisions as well. I have dissented on occasion. In those dissents, I believe I am right and others are wrong, while they think the opposite. Many people hold such beliefs. Do you understand where I am coming from? I would appreciate it if you could elaborate for a moment, as this is a matter of great concern to me, even when I find myself on the opposing side.

CARVIN: Justice Breyer,

BREYER: When we start overturning things, what does it imply about our country? Are we still seen as a source of stability in a rapidly changing world?

CARVIN: You have identified the exact same question. I believe the primary reason to overturn Abood is that all the justifications presented for upholding Abood’s decision conflict with other precedents set by the Court. Hence, by overturning Abood, we are not doing what you suggest; instead, we are doing the opposite.

Carvin then proceeded to mention a series of Supreme Court decisions that seem to contradict Abood (cases which Kagan’s questions and the respondents’ briefs had vigorously tried to distinguish).

Unfortunately for the respondents, Breyer, and Kagan, the Harris majority had already established that Abood had become unworkable because public unions found it impossible to engage in collective bargaining without infringing on core free speech rights regarding public policy.

When questioned further, the respondents could not provide a reasonable boundary. Alito, who had written the Harris majority, asked California’s Solicitor General Edward DuMont the following:

ALITO: Where does the state of California believe the line should be drawn? According to a provision in California law… agency fees can be used for "the cost of lobbying activities… in addition to… meeting and negotiating with the employer." Is that constitutional?

In response, DuMont tried to evade the specific provision to avoid addressing whether mandatory lobbying violates the First Amendment. Instead, DuMont said, "I don’t believe that is the question at hand… if there is a need to adjust that line, which there might be, that would be a question about where to draw the line that Abood established."

However, as Alito countered, "one of the questions is whether Abood is workable. So I do think it’s relevant to know whether you think that is on one side of the line or the other."

DuMont once again attempted to change the subject.

This conversation dealt a severe blow to the respondents’ claim of stare decisis. By admitting that "there might be" a need to adjust the boundary, DuMont essentially conceded Alito’s previous argument from Harris that the Abood ruling required constant judicial adjustments. This undermines stare decisis in two ways. First, it suggests that the Court would need to clarify Abood even if it chooses to reaffirm it. This strengthens the petitioners’ argument that legal change will be necessary regardless of the court’s decision, eliminating small-c conservatism as an argument for either side. Second, it confirms Alito’s assertion in his Harris opinion that, after four decades of experience, the judiciary continued to intervene and adjust Abood in practice.

This learned understanding of the judiciary is precisely the type of "new information" that the court often relies on to justify overturning previous precedents.

Free speech and a last-ditch effort

BREYER: As I analyze the cases, I establish boundaries and make distinctions. However, I am attempting to extract a fundamental principle from all of this. In my opinion, Plessy v. Ferguson was a case that should have been overturned. It should have been overturned because it violated the fundamental right to treat people equally, and there were many individuals who were not being treated equally. Do you see the level of abstraction I am operating at? If I apply the same level of abstraction to this case, I come to the following conclusion: When you leave this room, you will engage in numerous transactions where your money will go to individuals, including government officials, who will use it for purposes that you may not agree with. I don’t see anything fundamentally wrong with the boundaries you are drawing there. We are discussing six people negotiating about wages, hours, and working conditions. This is a far departure from the core principles of the First Amendment and closer to everyday verbal exchanges. It is regulation, if you will. Therefore, I cannot identify any erroneous fundamental principle here, unlike the major cases that we have overruled.

By making this intuitive and subjective appeal, Breyer was attempting to salvage a failing legal argument by directly appealing to Roberts and Kennedy. He hinted that a decision in favor of Friedrichs would be perceived as judicial activism rather than an acknowledgment of fundamental rights. Breyer seemed to hope for the type of reasoning that had influenced previous justices in difficult cases, where they used phrases like "shocks the conscience" or "I know it when I see it" to define violations of due process and obscenity.

Kennedy, Roberts, and Scalia rejected Breyer’s desperate attempt. Kennedy, in particular, seemed to comprehend the fundamental issues related to school reform. He posed a series of sharp questions, focusing on the unions’ budgets for public relations and media advocacy on the issues that Breyer dismissed as "mundane."

Kennedy pointed out that employment matters, such as merit pay in education, are central to how the country educates its children. He also questioned whether individual teachers like Friedrichs were "free riders" benefiting from union negotiations or if they were compelled to support positions that personally and professionally harmed them by forcing them to work in an unsatisfactory environment.

Roberts, meanwhile, pushed the respondents to identify the most trivial idea they could think of. When they mentioned "mileage reimbursement rates," Roberts emphasized that even seemingly minor matters could have an impact on public budgets and, therefore, implicate core free speech values.

Scalia, on the other hand, clarified that his previous legal decisions did not require him to treat public unions the same as private unions in this case. He argued that a public employer is different because the negotiated terms always affect matters of public interest, which changes the situation and may necessitate a rule change.

Progressives rejoiced at these arguments.

This is why the union lawyers were feeling disheartened. They were hired by the current union leadership and respondents to defend the Abood case, but by losing the support of the three swing justices, they clearly lost the case.

However, it is important to note that oral arguments do not hold significant precedent, and the justices may change their minds upon further review. Nevertheless, the situation does not appear favorable for these lawyers.

In the long run, though, the union lawyers should be celebrating. As I have previously stated, Abood was detrimental to private labor, the working poor, and social justice. Now that the rationale behind Abood has crumbled under its own weight, the progressive movement can anticipate a new and brighter future to be built.


  • declanryan

    Declan Ryan is a 25-year-old blogger who specializes in education. He has a degree in education from a top university and has been blogging about education for the past four years. He is a regular contributor to several popular education blogs and has a large following on social media. He is passionate about helping students and educators alike and is always looking for new ways to improve education.