Antonin Scalia

SCOTUS Arguments Seem to Bode Ill for Public-Sector Unions

The Supreme Court hears Friedrichs v. California Teachers Association.


Credit: Library of Congress

The U.S. Supreme Court heard oral arguments on Monday in the case of Friedrichs v. California Teachers Association. At issue is whether state governments may force public-sector workers to pay union fees, as a condition of employment, regardless of whether or not those workers are union members.

At the center of the case is a California public-school teacher named Rebecca Friedrichs. Because she disagrees with the teachers union on many issues, she has refused to join the union. Yet she is still compelled to pay fees covering the union's collective-bargaining activities. In Friedrich's view, those mandatory fees violate her First Amendment rights by forcing her to associate herself with a political agenda that she has no desire to be associated with. It is a "clear First Amendment violation," her lawyer, Michael Carvin, told the Court on Monday.

California Solicitor General Edward DuMont offered a different view. "California understands the First Amendment interests that are involved in this case," he told the Court. "But the State also has critical interests in being free to manage the public workplace." DuMont also stressed that if Friedrichs and others like her are not forced to pay fees to the union, they will become "free riders" on union efforts that benefit them.

Both sides came in for sharp questioning by the justices. But it was the union side that seemed to get the worst of it.

"The problem," Justice Antonin Scalia declared at one point, "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 or on the basis of—all of those questions are necessarily political questions." In other words, Scalia suggested, when the government forces Friedrichs to pay for collective bargaining by a public-sector union, the government necessarily forces Friedrichs to pay for union political speech that she rejects. Doesn't that go against the First Amendment?

Justice Anthony Kennedy made a similar point. "When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are ­­ strongly, strongly disagree with the union position on teacher tenure, on merit pay, on classroom size?" he told DuMont. "The union is basically making these teachers compelled riders for issues on which they strongly disagree."

"What is your best example of something in a collective bargaining agreement with a public employer that does not present a public policy question?" Chief Justice John Roberts asked DuMont.

"Mileage reimbursement rates or how you're going to have public safety," DuMont responded.

But "that's money," Roberts returned. "That's how much money is going to have to be paid to the teachers." It is still the government forcing its employees to fund union political activity, Roberts suggested. "The amount of money that's going to be allocated to public education as opposed to public housing, welfare benefits, that's always a public policy issue."

A decision is Friedrichs v. California Teachers Association is expected by June 2016.

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96 responses to “SCOTUS Arguments Seem to Bode Ill for Public-Sector Unions

  1. “California Solicitor General Edward DuMont offered a different view. “California understands the First Amendment interests that are involved in this case,” he told the Court. “But the State also has critical interests in being free to manage the public workplace.” DuMont also stressed that if Friedrichs and others like her are not forced to pay fees to the union, they will become “free riders” on union efforts that benefit them.”

    Am I correct in assuming that the union is being represented through MY tax dollars? If so, can I join the plaintiff’s action?

    1. You are incorrect. Your tax dollars are collected by the IRS, after which they cease to be yours.

      1. Possession is nine-tenths of the law*

        * = If you are the law

      2. THE + IRS = THEIRS

    2. Am I correct in assuming that the union is being represented through MY tax dollars?

      Everyone’s tax dollars. So everyone gets to decide. Not you. Since everyone does not have a voice, we have these angels among us called public servants. They serve The Public, which is everyone except you (or me or any other individual). They know best. After all, they have been bestowed their power through Representation. That means that whatever they say is The Will of The People.

      Basically it is the God given Divine Right of the King. We live in a feudal system, only with different costumes.

      1. We live in a feudal system, only with different costumes.

        Still invisible.

      2. And we don’t even get the jingly bells on the hats and shoes, either. “Budget cuts.”

      3. Central committee will decide what’s best.

        1. Central committee?

          How can that be?

          I heard from the left that the government is us!

          Oh and also government is simply the things that we choose to do together.

          1. It takes a collective of village idiots to populate the public sector.

    3. Well, indirectly (unless there is some direct funding I don’t know about). I doubt they’d give you standing.

  2. DuMont also stressed that if Friedrichs and others like her are not forced to pay fees to the union, they will become “free riders” on union efforts that benefit them.

    The union should copyright the benefits it negotiates.

    1. I must have missed the day in Labor and Employment Law where they discussed the statutory prohibition against being a free rider on a union.

      1. This is what I was going to say, except I never went to law school.

        If the public schools are giving the non-union members the same deal as the negotiated union members, that’s only because the school system finds it convenient. So a teacher is compelled to pay union dues because the school system finds it convenient?

        Hell, that sounds like illegal collusion between the school system and the union. But I am not a lawyer.

        1. Also, so what if there are free-riders? If the union is not valued enough by its members for them to chip in, then they should cease to exist. they should not be guaranteed funding in perpetuity with no performance requirements. Either people value organizing or they don’t.

        2. That’s what I was just thinking. The only reason (besides blind support for unions in general) I can think of for not allowing non-union members to negotiate their own salary is that it would be inconvenient for schools. And probably piss off the union if someone actually got paid based on their actual abilities and accomplishments.

    2. DuMont would probably like his neighbors to chip in for his yard improvements that raise their property values.

    3. If I expend effort to make changes that everyone benefits from then everyone, whether they agree with me or encouraged me to make those efforts, should be forced to pay me.

      By this reasoning everyone in the world is benefiting from the defenses of liberty put forward by the members of this commentariat who do that.

      Will everyone in the world be forced to pay dues to support us?

      Did I say that correctly, or am I just drunk?

      1. You may be drunk,but,I like the way you think.

      2. I was taking a financing class at our business school, and the owner of a medical device company was discussing how he would fund open source software development for software that would save them money. Someone asked why he would fund open source; what about all the free riders? He said that, so long as the software saved him more money than it cost to develop, what did he care if others benefited? The students couldn’t grasp it. The fairness! A top-10 B-school, full of business justice warriors.

        1. I was disappointed when no one in any of my undergrad microecon classes ever asked, “but why do firms let customers get away with the consumer surplus?”

          1. Forgive me if I am being dense, but what is “consumer surplus” ?

        2. “business justice warriors”. I like it.

        3. Doesn’t the business generate some good will and perhaps a little free advertising by funding the open source software development?

          They payback may not be as immediate or as easily measurable, but in the long term, doesn’t the business (potentially?) benefit from this?

  3. I don’t know why the unions are worried. Mandatory dues to a public sector union are easily within the emanations of the penumbra of “taxes”, and as a “tax” such exactments are presumptively Constitutional, are they not?

    1. If we accept the Union has taxing authority. Which if it does, essentially makes it a department of the government.

      1. Mandatory payments? Check.

        Public sector recipient? Check.

        Smells like taxes to me.

  4. There’s a major troll infestation a couple of threads down from here.

    1. A wall-o-troll.

    2. Are they union trolls or scabs?

      1. Probably Berntards. They don’t like it that we were making fun of the Bern’s math skills. I mean lack of math skills.

        1. I skimmed a little. The basic argument seems to be that, since no theoretically pure free market exists, we might as well go full sociofascist. Or something.

          1. It’s Tony, I’m pretty sure. It started first sentence about some type of blahblah economic master’s degree it has and then went full on derp from that point. Tony’s trying to reinvent himself.

            1. Although, Tony doesn’t usually start mass cut and paste of leftist sites like HuffPo. that I can remember. So maybe it’s not Tony, it’s just Tony like.

            2. The world is full of Tony’s. And people who sound the same on politics repeating talking points.

          2. 91% of economists agree with Bernie.

            1. Lame! Why not 97%?

              1. Appeal to consensus isn’t what it used to be. Kids these days.

            2. I heard it was over 200%

            3. “Economics is a subject that does not greatly respect one’s wishes.” – Nikita Khrushchev

              1. “You can’t always believe what you read on the internet.” – Abraham Lincoln

    3. Big Math is EVERYWHERE!!!!!

      1. Don’t be irrational. Big Math is only a fraction of what it once was. It just needs to get back to it’s roots. Also, don’t drink and derive.

        1. It’s an integral part of determining one’s limits. Other things are just pi in the sky.

          1. That’s a nu way of putting.

  5. “But the State also has critical interests in being free to manage the public workplace.”

    I’m not sure what he means, exactly by this. It sounds like he’s hovering dangerously close to my conspiracy theory that Pubsec Unions ARE the state, and their entanglement is a direct benefit to state power.

    1. Of course, whether a group of employees pays dues to a private organization or not does not impact on the state’s freedom to manage the public workplace in any way.

      1. The state is the union’s bitch.

      2. Exactly. How is the state not free to manage a public workplace if a Union is hobbled in its ability to extract dues from non-willing employees?

        Going back to your tax theory above, I supposed that there is in fact a precedent where the state can “compel” an employee to purchase the services of a Union, wanted or not.

  6. As a non-lawyer, I don’t get how the whole public sector union thing isn’t pure bribery. The unions are giving money to elected officials who determine the terms of their contracts. If I handed my boss a thousand bucks and asked for a $10,000 raise (it’s not HIS money we’re negotiating, it’s the shareholders’), and he took the cash and gave me the raise, I think he and I would be breaking rocks in some southern prison for 12-15, depending on good behavior.

    1. Yeah, it’s basically an organized crime racket.

  7. We’ve been down this road of guarded optimism before. I have zero doubt that the court’s lukewarm conservatives will screw us again.

    The conditioning has gotten to the point that I become nauseated simply by seeing Damon’s name in print or hearing his voice. Though I’m sure he’s a very nice man, if not a very hard drinker.

    1. We’ve been down this road of guarded optimism before. I have zero doubt that the court’s lukewarm conservatives will screw us again.

      I for one am learning to guard my optimism better. It’s been kicked in the nads enough times, you’d think I’d have learned by now.

  8. I’ve pretty much figured out what the problem is with society. Ok, there’s lot of problems. I mean the BIG one.

    There are too many opinions, too many experts. Why just look around here at all of the opinions and experts.

    There’s only one solution. We need a panel of experts, TOP MEN, to decide on everything and make the rules. Everyone else needs to shut up. Why am I the only one who has ever thought of this?

    1. Too many dicks.

      1. No one needs to have a dick.

        -Michelle Obama

        1. “That dick, you didn’t make it”.

    2. You mean TOP ZEMAN. MEN is too diverse and gendered.

  9. So seems like Rand didn’t make main stage. No Rand to the main stage!

    1. I take it that means the libertarian moment is finally over?

  10. “The union is basically making these teachers compelled riders for issues on which they strongly disagree.”

    “The government is basically making these taxpayers compelled riders for issues on which they strongly disagree.”

  11. Constitutional law professor Laurence Tribe has a gotcha argument against Ted Cruz: Interpreting the Constitution on originalist principles, as Cruz advocates, would mean that Cruz is not a “natural born citizen” because he wasn’t born on U.S. soil.

    “On the other hand, to the kind of judge that I admire and Cruz abhors ? a ‘living constitutionalist’ who believes that the constitution’s meaning evolves with the needs of the time ? Cruz would ironically be eligible because it no longer makes sense to be bound by so narrow and strict a definition.”

    Never mind that the First Congress, which presumably knew as much about the original understanding as Tribe, proclaimed certain people born abroad to be “natural born Citizens.”

    Tribe also says: “…our political divisions have become so profound and so paralyzing that people no longer believe in the possibility of disinterested legal research.”

    1. Of course, if the Constitution’s meaning evolves with time according to the interpreter’s view of the needs of the time, then one could argue that a hater like Cruz shouldn’t be President.


    2. (note: Congress frequently changed the statutory provisions about citizenship for people born abroad, but the fact that the First Congress allowed *any* of them to be considered natural born citizens means the founding generation (or the part that was in Congress) disagreed with Tribe about how you have to be born on U.S. soil to be “natural born.”

    3. Yup, there it is:

      And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:

      Sounds like they weren’t as pedantic about “jus soli” as some would like to believe, and instead subscribed to a distinction between naturalized (that is, citizenship granted after birth) v. natural-born (that is, a citizen at birth) instead.

      1. But back then they went by paternal bloodline, ie, your daddy had to be a citizen, if your whore mom screwed some foreigner and squirted you out beyond the bounds of These United States well tough shit sunshine you are no more a ‘merican then Panche Villa.

        1. Poncho, not Ponche, goddammit.

          1. Panche Villa was that guy in CHiPs, right?

            1. Sanche Panche? Wasn’t he with that knight guy human smuggler, Don Coyote?

          2. Fuck, Pancho not Poncho, son of a bitch.

        2. “back then they went by paternal bloodline”

          Which emphasizes my point that Tribe is wrong.

          He claims, according to the article, that “the legal principles that prevailed in the 1780s and 90s required that someone be born on US soil to be a ‘natural born’ citizen” and that “Even having two US parents wouldn’t suffice for a genuine originalist.”

          And as you say, they went by paternal bloodline instead.

          So Tribe is wrong about natural-born citizens needing to be born on U.S. soil. Or else the First Congress is wrong and Tribe has greater insight into the Constitution than they did.

          Now, Tribe does mention the patriarchy issue as an emergency back-up argument, but he (like you) seems confused on this point, assuming that Congress has no power to do anything other than what it did in 1790, which is a highly cartoonish straw man of the originalist argument.

    4. It’s such a dumb thing. “Natural born” is as opposed to “naturalized”. Or should we exclude people born by c-section or conceived in a lab?

  12. “The amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

    I see Roberts is wearing his conservative socks today. A liberal knows there’s no issue involved in allocating money to public education as opposed to… anything. Everybody gets more money! Especially education, but especially public housing and welfare benefits. And public health, especially public health. Government budgeting is the only place they seem to understand non-zero sum games. If you have a billion dollars and have to split it between 3 agencies, how much money does each agency get? They each get as much money as they need because spending by the government is really an investment, it has a multiplier effect and the more money you give each agency the more money you’ll have!

  13. “The amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

    He seems to be suggesting that there’s a limited pool of money to pay for all this stuff. How quaint.

  14. Ex-cop seeks to outlaw photographing police because he was once pwned by Wilson Pickett


    1. I’ll never forget how I was distracted by someone being behind me while I was making an arrest,” he says. “He could have pulled out a gun just as easily and shot me. And now you have people everywhere with these video cameras in their phones who are walking up behind cops when they are making an arrest.”

      He seems to be accidentally arguing that he wants to outlaw people being around during an arrest. that the officer should be able to make his or her arrest unfettered by the distractions of humanity.

  15. OT:
    Airplane pilots can’t give rides, ’cause regulations!

    “‘Uber of the Skies’ shot down by regulators, court”…..ors-court/

    Bonus: Commenter Pravda call libertarianism “goofy”; I guess he prefers “murderous”.

    1. I must say two-wheeled German-flavored mammals are quite motivating.

    2. Oh…just look around for Cytotoxic comments. He is trolling the hell out of us with his schtick.

      1. Cyto isn’t a troll, he’s completely sincerely retarded.

    3. Don’t worry, they’ll be back.

  16. Rand Paul out of next Fox Business debate, tells network to fuck off with undercard consolation

    GOP candidate Rand Paul has revealed to CNN’s Wolf Blitzer that he has been left off of the next Republican Debate stage, scheduled for this Thursday night on Fox Business. The Paul campaign was suspected of falling short of the announced criteria for the debate, and ahead of the lineup announcement on Lou Dobbs Tonight, Paul has let his fate be known.

    Paul told Blitzer, “I will protest.”

    “It’s a mistake,” the Libertarian candidate continued. “We have been in the top five or six in most of the recent polls? it’s a mistake to try and exclude me from the national debate.”

    Senator Paul revealed that he “will not accept” competing in the undercard round Thursday. As for informing Fox Business of his decision not to attend before airing his announcement on CNN, Paul simply said, “We’ve let them know that.”

    The insulting thing is that Kaisch and Jeb! made it on stage despite being equally hopeless.

    1. “It’s a mistake,” the Libertarian candidate continued.

      Great reporting there, boys.

    2. ineup announcement on Lou Dobbs Tonight

      Ah, Lou Dobbs.

  17. Jury duty today, was drummed out in voir dire. Here’s what I think killed me: the defense posed a hypothetical about two friends, one riding a motorbike and pulling the other on a skateboard. They quizzed each juror on what they thought the levels of culpability should be if the second friend is injured. Now, the charge in question is reckless driving or sommat. So when I was asked, I suggested that debating who has the greater culpability would be a great question for a civil case, but since this was a criminal proceeding the question of relative culpability was moot. He, as sole operator of the vehicle, is responsible for how the vehicle is operated. His friend, admittedly a willing participant, is not on trial. The state is bringing the case against him for reckless driving, not the friend for damages. So it really devolves on the statutory language and whether he violated it.

    1. “Well, Mr. Lawyer, let’s assume you made a logical argument…no, I can’t do it.”

      1. I mean, sure, if you had two kids who managed to get banged up riding bikes in a similar fashion you’d say Look, numbskulls, you idiots had it coming. Think about what you’re doing. Don’t come crying to me.

    2. So… they dismissed you because you can string sentence together.

        1. Your jury summons is in the mail.

          1. I work in the insurance industry. Bring it on.

  18. The REAL Constitutional issue regarding union labor law is not the First Amendment – it’s the bullshit expansion of the Interstate Commerce clause.

    There is nothing in that clause the remotely supports the claim that the federal government has any authority to regulate anything that could have “an effect” on interstate commerce rather than simply actual interstate commerce transactions.

    If it were not for the that bogus interpretation, there would be no federal labor laws at all.

  19. I remember all the articles about the Obamacare individual mandate decision saying “the government sure had a rough day in court today!” and “looks bad for the government after oral arguments,” and then Roberts rewrote the law for the government.

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