Friedrichs v. California Teachers Association: How right to work came to the Supreme Court

Two weeks ago, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, in which the plaintiffs argue that the requirement that nonunion workers pay union dues violates their First Amendment rights. Many observers believe that they are likely to win. Even if they merely come close, the gradual constitutionalization of controversial union practices is an interesting development.

In what turns out to great timing, Reason magazine has just published my review of law professor Sophie Lee's book, "The Workplace Constitution from the New Deal to the New Right." When New Deal legislation granted monopoly power over workplace bargaining to labor unions, two distinct groups felt aggrieved: African American workers, who faced exclusion and discrimination from many unions; and other Americans who for various reasons didn't want anything to do with unions.

Civil rights groups pioneered the strategy of arguing to courts that the power granted by government to unions made them the equivalent of state actors for constitutional purposes, meaning that they could be sued for discrimination under the Fourteenth Amendment. Those claims were rendered largely superfluous when Congress banned labor-union discrimination via legislation. The right-to-work movement, however, adopted the civil rights groups' constitutional theories for their own end, to argue that union "coercion" of nonunion workers was unconstitutional. The movement has scored many legislative victories, but is still fighting for its constitutional theories in court, helped of course by the increasing conservatism of the Supreme Court. Hence Friedrichs.

I learned a lot from Lee's book. For example, Lee points out that while liberal Republican judges were sympathetic to black workers' constitutional claims, liberal Democratic judges, afraid of diminishing the power of labor unions, tended to not be. The book is also well-written. Check out the review, and, if it's up your alley, the book.