Supreme Court splits on union fee issue

Tuesday, the eight surviving justices of the U.S. Supreme Court supercharged an already white-hot issue in the 2016 presidential campaign. With their 4-4 split but no opinion or other explanation, the justices in effect gave a big but perhaps temporary win to public employees unions. The implications for personal freedom, though, are unfortunate.

At issue in the case, Friedrichs v. California Teachers Association, was whether it’s unconstitutional for public-sector unions to charge “agency fees” – essentially dues – to nonmembers whom they represent but who don’t want to support union activities.

When the justices heard the case in January, they appeared ready to vote 5-4 in favor of 10 public school teachers who contend that being forced to pay fees violates their First Amendment protections.

But the death last month of Justice Antonin Scalia leaves this important issue – and likely several others in the court’s present term – with no settled resolution. That whooshing sound you hear is the collective chorus of politicians nationwide, most of them eager to tip the court’s balance to the left or the right. Tuesday’s announced tie on a labor law case this important to liberals and conservatives alike will have each camp yearning all the more for a president – and a ninth justice – who share their worldviews.

Unions can make a reasonable case that someone who benefits from their contract negotiations should pay for collective bargaining activities, if not for political activities. California is one of several states that says public employees who don’t belong to unions must pay such fees.

The problem with the unions’ position is that it starts and stops with that argument against workers they denigrate as “free riders.” The unions are a lot less eager to talk about workers’ rights to free speech and free association. With Scalia still on the bench, the court might well have undone a 1977 precedent, Abood v. Detroit Board of Education, and said the employees’ First Amendment rights are paramount. The court set the table for that new direction when it ruled in a 2014 Illinois case that home caregivers shouldn’t be forced to join a union. That opinion said that “except in perhaps the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

In a meeting with the Chicago Tribune Editorial Board before the court heard her case, lead plaintiff Rebecca Friedrichs, a third-grade teacher now in her 28th year as an educator, offered a compelling rationale: “The unions call me a free rider. But the benefits they negotiate for me are not worth the moral costs. The defined benefit program and the expense to my community and my nation, and using my money to protect teachers who are ineffective and sometimes abusive in class – this is a liberty issue for me.”

In other words, when public sector unions negotiate contracts with governments, they pursue goals with public policy impacts: how much money taxpayers will spend on employees rather than on other priorities, whether workers who incompetently provide services can be fired, what enforceable guarantees citizens have that union members will even show up for work. Why should employees who disagree with a union on those issues be required to help advance its positions? As Justice Anthony Kennedy put it during oral arguments on Jan. 11, “the union basically is making those teachers compelled riders for issues on which they strongly disagree.”

But with the 1977 precedent still intact, so is a more recent Ninth Circuit appellate court ruling that, in effect, the 10 teachers still must pay fees to the California union.

By any of several routes, the constitutional issue at stake in Friedrichs could return to the Supreme Court after it has a full complement of nine justices.

This is the first major case (although not the first case) in which Scalia’s absence contributed to a 4-4 tie. Such a vivid exposure of the Scalia vacancy’s import also is a reminder that several justices are advancing in years – a fact of life that could put enormous power to shape the court in the hands of whoever takes the presidential oath of office next January.

But all of that lies ahead. For now, the Supreme Court is brushing off what ought to be those First Amendment freedoms of speech and association. For lack of a decisive outcome with a written opinion, the rest of us are left to wonder why.