Mehlhorn: How the Unions Lost Three Swing Votes and Pushed the Supreme Court Towards Historic Friedrichs Ruling

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The contingent of lawyers for the teachers union were openly dejected. That much was clear just from standing behind them on the long line to pick up coats at the United States Supreme Court. That wait gave them plenty of time to relive their colleagues’ oral arguments in the case of Friedrichs v. California Teachers Association.
Justice by justice and argument by argument, their hopes for preserving compulsory union dues in the public sector had just crumbled.
“I wish we had just conceded that point, so we could have salvaged something,” one observed.
“So much for that,” a second concluded
“I’m so depressed,” chimed a third.
Counting — and courting — Supreme Court justices
For those just tuning in, check out The Seventy Four’s text and video primer on the nine things you need to know about Friedrichs. Briefly, California law requires all teachers to pay annual dues to the teachers union, even if they are not members.
Veteran teacher Rebecca Friedrichs believes that union-backed policies are bad for students and teachers, and argues that being forced to subsidize the unions’ lobbying for such policies is a violation of her First Amendment right to free speech. She is petitioning the Supreme Court to overrule its prior 1977 decision, Abood v. Detroit Board of Education, which allows such fees.   
Heading into this week’s oral arguments, the respondents (the attorneys for the union) knew they were in trouble. In the 2014 case, Harris v. Quinn, involving home health care workers, a five-justice majority did not explicitly overrule the 1977 Abood decision, but expressed discomfort with the case.
The opinion of Associate Justice Samuel Alito, joined by Chief Justice John Roberts and Associate Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, notes  that:
The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.  

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.

Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.

Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” (in Abood’s terms, expenditures for “collective-bargaining, contract administration, and grievance-adjustment purposes,”) or nonchargeable (i.e., expenditures for political or ideological purposes). In the years since Abood, the Court has struggled repeatedly with this issue.

In light of this section of Harris, and the jurisprudence of the justices involved, both petitioner Friedrichs and respondent CTA knew that some of the Friedrichs votes were essentially locked in. Respondents could count on votes from Breyer, Ginsburg, Sotomayor, and Kagan. Petitioners could count on the votes of Thomas and Alito.
Respondents thus hoped to peel away Roberts, Kennedy, or Scalia from the Harris majority. Roberts and Kennedy are both reluctant to overturn prior rulings, and so might choose to uphold Abood even if they disagree with it. For his part, Scalia has previously expressed openness to some of the respondents’ arguments in the cases Lehnert v. Ferris Faculty Ass’n (1991) and Rutan v. Republican Party of Illinois (1990). Failing that, respondents hoped to at least fight for an opinion with caveats that could be exploited in practice and perhaps extended by a future court majority.
Measured against these objectives, the oral arguments were a disaster for them.
“Quite a big deal”  
During the arguments, Alito on the one hand, and Kagan and Breyer on the other, argued via questioning about whether the petitioners’ claim was strong enough to justify overruling a prior precedent. This argument was largely intended for the benefit of Roberts and Kennedy, who often uphold prior decisions on the basis of stare decisis, by which judges defer to their predecessors even when they disagree.
Roberts and Kennedy especially believe that if the Supreme Court disrupts society’s reliance on prior Court decisions, then the institution appears motivated by personal preferences rather than impartial legal analysis.  Respondents aggressively made this case in their briefs and oral arguments. During oral arguments, Kagan and Breyer emphasized that Abood struck a balance and that millions of employment relationships had been crafted in the wake of the Abood ruling.
Breyer’s longest and most heroic effort on this point, during which he repeatedly glanced meaningfully at Roberts and Kennedy, came in the following exchange with the petitioners’ attorney Michael Carvin:  
BREYER: I think there are good arguments on your side, and there are good arguments on the other side. When you go into this, it was, in my view, a kind of compromise 40 years ago. But it was 40 years ago. It was 40 years ago. I mean, maybe Marbury v. Madison was wrong. … [A decision to overrule Abood] would certainly affect the bar. It would certainly affect the integrated bar. It would certainly affect at least student fees at universities. It would require overruling a host of other cases, I think, at least two or three that I can find, and that's quite a big deal.

CARVIN: It certainly is.  

BREYER: And so what is it, in your mind, that you can say from the point of view of this Court's role in this society in that if, of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well—not perfectly. I guess people could overrule our decisions just as easily. I've had a few dissents. In those dissents I think I'm right and the others are wrong, and they think I'm wrong and they're right. All right? There are a lot of people who think that. Do you see where I'm going? I'd like you to talk for a minute, because it is a matter of considerable concern to me, even when I'm on the other side of something.

CARVIN: Justice Breyer,

BREYER: And 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?

CARVIN: And I think you put your finger on precisely the same question. I think the principal reason to overrule Abood is that all of the rationales offered in support of Abood's result directly conflict with other precedents of this Court. So by overruling Abood, you don't do what you're saying, you do just the opposite.

Carvin then listed a long line of Supreme Court decisions that appear to contradict Abood (cases which Kagan’s questions and the respondents’ briefs had strenuously tried to distinguish).
Unfortunately for the respondents, for Breyer, and for Kagan, the Harris majority had already established that Abood had proven unworkable because it was impossible for public unions to engage in collective bargaining without infringing upon core free speech regarding public policy.
When pressed, the respondents simply were unable to come up with a defensible boundary line. Alito, who had authored the Harris majority, pressed California’s Solicitor General Edward DuMont with the following question:
ALITO: Where does the State of California think the line should be drawn? A provision of California law … says that agency fees may be used for “the cost of lobbying activities … in addition to … meeting and negotiating with the employer.” Is that constitutional?
In response, DuMont tried to dodge the provision in question, so as to avoid the issue of whether compulsory lobbying violates the First Amendment. Instead, DuMont said “I don’t think that’s the question presented here. … if there is a need to adjust that line, which there might be, that would be a question about where to draw the line that Abood draws.”
But, as Alito replied, “one of the questions is whether Abood is workable. So I do think it's relevant to know whether you think that is on one side of the line or the other. “
DuMont again tried to change the subject.
This exchange was devastating for respondents’ stare decisis claims. By admitting that “there might be” “a need to adjust that line,” DuMont essentially conceded Alito’s prior argument from Harris that the Abood ruling required constant judicial tinkering. This undermines stare decisis in two ways. First, it suggests that the Court would need to clarify Abood even if it chooses to reaffirm it.  This reinforces the argument made by the petitioners that some legal change will be necessary no matter which way the court decides, eliminating small-c conservatism as an argument for either side.  Second, it confirms Alito’s claim in his Harris opinion after four decades of experience, the judiciary continued to intervene to tinker with making Abood work in practice.  
This learned experience of the judiciary is precisely the type of “new information” that the court often uses to justify overturning prior precedent.
Free speech and Hail Mary
Breyer tried to distinguish Friedrichs’ claims from other famous cases where the Supreme Court had reversed itself by suggesting that the First Amendment rights at issue here were somehow more mundane than other important constitutional rights.  Again from the transcript:
BREYER: You go through the cases and you draw the line here, there, and the other place. And I'm trying to abstract from that in a very basic way for this reason.  I think Plessy v. Ferguson [the 1896 case that said that segregation was legal] was a case that certainly should have been overruled [as it was in Brown v. Board of Education in 1954]. It certainly should have been overruled because it was basic, because it was a right to treat people equally, and there were millions of people who were not. Now, you see the level of abstraction I'm working at? Now, if I put that same level of abstraction here, I see the following: You will go out this door, and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with. I don't see anything too basic in the lines you're drawing there. …We're talking about six people in a room bargaining about wages, hours, and working conditions. That's pretty far removed from the heart of the First Amendment, and pretty close to ordinary physical activity carried on through words. Regulation, if you like. So I can't find a basic principle there that's erroneous as in these major cases that we have overruled.
With this intuitive and subjective appeal, Breyer was trying to rescue a failing legal argument by appealing directly to Roberts and Kennedy, and hinting that a decision for Friedrichs would be seen as judicial activism by the country rather than acknowledgement of fundamental rights.  Breyer seemed to be hoping for the type of reasoning that had led previous justices in tough cases to use language such as “shocks the conscience” (used to define a violation of due process in 1952) and “I know it when I see it” (used to define obscenity in 1964).  
Breyer’s Hail Mary was swatted away by Kennedy, Roberts, and Scalia, in part because Kennedy seemed to understand the fundamental issues involved in school reform. In a blistering series of questions, Kennedy focused on the unions’ budgets for public relations and media advocacy on issues that Breyer claimed were “mundane.”
Kennedy noted that employment issues such as merit pay, in the education context, actually go to the heart of how the country educates its children and also whether individual teachers such as Friedrichs were “free riders” (who benefitted from union negotiations) or instead are compelled to support positions which hurt them personally and professionally by forcing them to work in an environment they dislike.  
Roberts, for his part, pressed the respondents to name the most mundane idea they could imagine, and when they said “mileage reimbursement rates,” he responded that even such a seemingly mundane matter would have an impact on public budgets and thus would implicate core free speech values.
Scalia, in turn, made clear that his prior jurisprudence would not compel him to treat public unions the same as private unions in this case.  As he said, “the problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes the situation in a way that may require a change of the rule.”  
Cue cheering from progressives — really
All of this explains why the union lawyers were depressed.  They were hired by current union leadership and the respondents to defend Abood, and by losing those three swing justices, they clearly lost the case.
Of course, oral arguments do not have precedential weight, and the justices might change their mind upon review, but it does not look good for those lawyers on the coat check line.
In the long term, however, they should be celebrating.  As I’ve written elsewhere, Abood was bad for private labor, the working poor, and social justice.  Now that Abood’s reasoning has collapsed under its own weight, the progressive movement can look forward to building a new and brighter future.

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