Lennie Jarratt
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Oral arguments in the Friedrichs v. California Teachers Association case were heard at the U.S. Supreme Court (SCOTUS) on Monday, January 11. Most experts agree the questions and responses directed toward the attorneys for the California Teachers Association (CTA) from SCOTUS justices were hostile, which doesn’t bode well for CTA’s case.
For a quick refresher, Rebecca Friedrichs, a teacher, is suing her union to end forced agency shop fees, also known as “fair share.” The contention is these fees are political in nature and teachers should be free to choose whether to support this activity or not.
You can read the transcript in its entirety here. Some of the questions asked by the justices are as follows:
JUSTICE GINSBURG:
Mr. Carvin, is it permissible, in your view, to allow the union to be the exclusive representative so that nobody else is at the bargaining table?
JUSTICE SCALIA:
Mr. Carvin, is it okay to force somebody to contribute to a cause that he does believe in?
JUSTICE KENNEDY:
If you were to prevail, what would happen with private employers in a state which said that there should be a union shop?
JUSTICE GINSBURG:
What about the Railway Labor Act?
JUSTICE KAGAN:
Well, one of the points of your public employee cases generally, Mr. Carvin, is essentially to ensure that when the government acts as an employer that the government be put in the same position as a private employer. In other words, that the various constraints that would constrain the government when it’s acting as sovereign fall away and a different and lesser set of constraints apply that are meant essentially to ensure that the government doesn’t use its position as leverage over things it oughtn’t to be able to control, but that the government can do the same things that a private employer can.
And so why doesn’t this fall within that category of things? In other words, you’ve just said private employer can decide to do this. That’s not a constitutional problem. So too with the government employer.
JUSTICE SOTOMAYOR:
Well, why are we treating the government differently than a private employer?
You just earlier said, and I think our cases are replete with the point that as employer, the government can already restrict speech, which is, I think, a higher problem than subsidization.
We’ve already permitted subsidization of bar associations, of government programs. We’ve permitted assessments on a lot of different levels, so why can’t the government, as employer, create a state entity? Because this union under California law is a state entity.
JUSTICE KENNEDY:
So collective bargaining in this instance subsumes, includes this wide-ranging effort on the part of the union to have a public relations campaign in favor of principles that some of its members, that some teachers strongly object to?
JUSTICE BREYER:
And you think all the Fourth Amendment cases, in your opinion, are correct? I mean, you know, the police can go search a car, the good faith rule in respect to admission of evidence that was seized unlawfully under the Fourth Amendment? I read a lot of criticism of those things in the paper. And it seems to me you could get people who are judges, who are up here, who thought that the Fourth Amendment should be really extended and, in fact, there should be no rule that gives police any special authority to search a car.
JUSTICE SOTOMAYOR:
Ah, but that’s the question, isn’t it? Would it be illegal for the government, as employer or government, to fund the union?
JUSTICE ALITO:
Is there any history in American labor management relations, at least going back, I don’t know what, 75, 80 years of employers, paying for unions? I thought the union movement was against this long ago.
JUSTICE SCALIA:
Is it a bargainable subject? I mean, it’s a political subject. I suppose you can enact a statute that says the government will fund you, but is it bargainable? Is it one of those items that the union can bargain for?
JUSTICE BREYER:
And you, you start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?
JUSTICE ALITO:
Before you get into that, could I just ask you a preliminary question that came up earlier in the argument?
Do you think that the California Teachers Association is an agency of the State of California?
CHIEF JUSTICE ROBERTS:
It’s hard to visualize this in a pure employer-employee relationship, when the collective bargaining agreement itself has to be submitted for public review and public comment.
That suggests that you’re doing more than simply regulating the employment relationship?
CHIEF JUSTICE ROBERTS:
If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free-rider concern that’s been raised is really insignificant.
JUSTICE SCALIA:
The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority? … the basis of all of those questions are necessarily political questions. That’s the major argument made by the other side.
