Breaking: SCOTUS Rules on Friedrichs v. California Teachers Association (kinda/sorta)

supreme court
Via email from Lyle Denniston at

Opinion analysis: Result but no guidance on public unions’ fees (FINAL UPDATE)

Posted Tue, March 29th, 2016 11:44 am by Lyle Denniston

Final update 11:44 a.m.


The most important labor union controversy to reach the Supreme Court in years sputtered to an end on Tuesday, with a four-to-four split, no explanation, and nothing settled definitely.  The one-sentence result in Friedrichs v. California Teachers Association will leave intact, but on an uncertain legal foundation, a system of “agency fees” for non-union teachers in California — with the legal doubts for public workers’ unions across the nation probably lingering until a ninth Justice joins the Court at some point in the future.

The practical effect was to leave undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit, which had simply found itself bound by a prior Supreme Court precedent upholding such fees against constitutional challenge.  The Ninth Circuit had before it a case specifically filed as a test of that precedent, and only the Supreme Court could revisit that prior ruling, binding on all lower courts.

The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, not lobbying or outright political advocacy.

But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split.  If it had actually tried since Scalia’s death to find a way around a split, that effort clearly came up short.  The result set no precedent, and thus left the constitutional issue dangling.

Shortly after Justice Scalia died, the Center for Individual Rights, a conservative legal advocacy group involved in the Friedrichs case, announced that it would ask the Justices to schedule a rehearing on the case if it were to split four to four.  The Center said at the time that it expected such a request would put the case off until the Court’s new Term, which is slated to begin on October 3.  (UPDATE: Lawyers involved said Tuesday that a rehearing petition will, in fact, be filed.)

Under the Court’s rules, a rehearing request in the Friedrichs case would have to be filed within twenty-five days following Tuesday’s ruling.  It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision.  It is unclear how that rule would work when the judgment had been reached by an evenly divided Court.

Tuesday’s result in this key case marked the second time that the Court, with its membership reduced by one, had divided evenly in a case it had reviewed.  A week ago, it did so in a case about spouses’ responsibility for each others’ debts (Hawkins v. Community Bank of Raymore).

Although President Obama has nominated Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit to succeed Justice Scalia, Senate Republican leaders have vowed to take no formal action on that nomination until after the presidential election on November 8.  It thus is unclear at this point when a ninth Justice might join the Court, and help it avoid further four-to-four splits in deciding cases.

If the GOP position does not change, a new Justice might be approved in a post-election Senate session, but otherwise would probably not be approved in time to join the Court before next March.

If the Court were to decide not to rehear the Friedrichs case, another option for confronting the same agency fee question would be in a different case that had worked its way through lower courts, and reached the Justices after there was a full bench.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]

For more background, see Shamus Cooke’s ‘Have Unions Cheated Death With Scalia Gone?’

Well…no.  In all likelihood the ninth justice appointed to the Court will break the tie.  Don’t bet on Merrick Garland being pro-labor, nor any other potential Dem-appointee.  For the Rs?  Cass Sunstein?

From ‘Obama high court pick Merrick Garland: A record of support for police powers’ by Tom Carter

But here is ‘Friedrichs Plus:

From the Center for Individual Rights: March 29, 2016: CIR to Seek Rehearing in Friedrichs

 CIR is representing ten California teachers and the Christian Educators Association International in a landmark effort to re-establish the right of individual teachers and other public employees to decide for themselves whether to join and support a union. The suit claims state “agency shop” laws, which require public employees to pay union dues as a condition of employment, violate well-settled principles of freedom of speech and association. While many teachers support the union, others do not and the state cannot constitutionally compel an individual to join and financially support an organization with which he or she disagrees.

Collective Bargaining is Inherently political

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political.  But bargaining with local governments is inherently political.  Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.

Political Opt-Out is Burdensome...yada, yada

To say that they stretch the truth would be an understatement, or at least Friedrichs herownself does.

10 responses to “Breaking: SCOTUS Rules on Friedrichs v. California Teachers Association (kinda/sorta)

  1. philosophical differences!!!!!!!! NYT, WaPo etc. drag that line out whenever there is a minuscule difference b/n the mules &…what’s a sterile elephant? anyway, b/n them on some point.

    but still, why should unions (or the gov’t or anyone for that matter, but unions’ what’s on tap) be able to coerce people to pay for anything? say i’m a hardcore commie & don’t want to put my meager teacher’s pennies into the quislings in the teacher’s union bureaucracy w/their half measures & genuflections before the ever respectable & ever meager possible as defined by pocket protecting pen pushers in the teacher’s union, why appeal to the “organized” violence of the state to make me do it?

    maybe i’m missing something here and i am kind of playing el abogado del diablo, but kinda not too. well, the unions have done all this great crap in the past (i’m not doubting that’s true), but what have they done for teachers lately?

    • i’m being glib i know. teacher tenure is not nothing, certainly preferable to the race to the bottom teacher competition BS pushed by both parties, esp. the current one.

      • teacher tenure i sometimes have a problem with, but if principals kept jackets on teachers, it wouldn’t be such a big problem.

        but as for recent history, i hit my trade unions category and dug out this as a fer instance:

        ““According to sources I developed this weekend, EGT has brought in a para-military style organization out of Baltimore, Maryland that goes by the name of the Special Response Corporation whose web page you can peruse here. Among other things that they claim to be good at is“Counter-terrorism and threat mitigation systems”. Another interesting claim they make at the above cited website is that “Our personnel command rather than demand respect, their training, bearing and equipment make this possible”. What that means is that after you hire them, you can dress them however you wish, SRC security, or SR
        C military. Whatever you think might be appropriate for your situation.”
        Private security firms being used against Union Strikers have been used since the turn of the century when the Pinkertons and other private firms seem to have been issue carte blanche to neutralize unions and strikes.

    • way-ull…had you been a commie back in the day, and engaging in the many strikes (mining, especially), you would have been an IWW wobblie. at the start of WW II, roosevelt convinced them to suspend striking for the war effort, and allowed them some unionization.

      i will repeat that this case was the test case that alito had been seeking for years to settle the matter of collective bargaining once and for all. Nyet, , iow. see: WI for how turning that movement into an electoral movement went. again: not well = scott walker, and tra la la, (i hope i’m right,crap memory & all. if ya want to talk about the Big Unions, esp. afl-cio: fuck them: captive to dems, and they were useless or worse on this issue.

      more later, i’ve had a long day of terror tuesday tithing baking, and it hasn’t gone all that well, ho ho. i love devil’s advocate arguments, and hope i might respond better later. ‘needs must’, as the hobbits would say. ;-)

  2. moar: ‘The End of Public-Employee Unions?’ the atlantic

    “Here’s the issue: Even in union states, public employees cannot be required to join a union. Such a requirement, the Court has said, would violate their First Amendment rights, because that would be the government requiring them to speak and associate against their will. However, state governments can sign agreements with unions designating the union as the official bargaining agent for all employees, members or not. The union then must represent both members and non-members—and representation costs money, in the form of lawyers, economists, researchers, and so forth. Non-members are thus potentially “free riders” who get a service paid for by their fellow workers.

    In response, a compromise developed called the “agency-fee” or “fair-share” payment. Requiring objectors to pay for political activities or lobbying would be “compelled political speech,” and violate the First Amendment. However, under the “fair share” system, non-members are charged a fee that excludes these political activities and is designated to cover only the chargeable costs of actual representation—negotiating contracts, administering benefit programs, and helping employees with grievances.

    The “fair share” fee is Alito’s current target. In a 1977 case called Abood v. Detroit Board of Education, the Burger Court said the fees do not violate the First Amendment: “Public employees are not basically different from private employees,” the Court said. “[O]n the whole, they have the same sort of skills, the same needs, and seek the same advantages.”

    The subjects of collective bargaining are the same in either case. Wages and working conditions in the public sector have a political quality, but in their essence were more like the issues that private employers and their workers must negotiate. A state could decide that “exclusive representation” would make for a more orderly workplace; it could also decide to disallow “free riders.” Neither decision violated the First Amendment. “A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint,” the Court said. “Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing.”

    • thank you. i sort of knew this, but that’s nice & clear. and seems equitable, unless you are a hero w/a thousand —holes like alito.

      • lol x 3. ‘what kind of holes, dr. science?’

      • p.s. i’m just about to put up a stellar mental health break; i could sure use one. i took a brief foray into a site from which i was snuffed long ago to ask why they only blog about duopoly D candidates when there are sooo many other interesting and important events, thoughts, abroad. it really was pretty fun.

    • bless your heart, marym. i’m struggling to write it up now, and as ever have far too many pages of related links and quotes, goddam. i will read your jacobin link for further opinion/info (the subtitle is provocative). ;-)

      (been reading far too many radical, anti-capitalist essays.)

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