Labor law is not my best subject, for sure. I’ve handled many employment cases, and still advise clients on employment matters. Labor law, though, connotes union-management issues, and it’s an area in which I don’t practice.
Qualifier noted, I found myself following Friedrichs v. California Teachers Association, No. 14-915, the case in which the which the U.S. Supreme Court has been asked to abolish the “agency fee” regimen associated with public sector unions. In part, this was a “how can you ignore it case,” written and talked about everywhere. It’s also a reminder that elections matter. Had some more people moved their asses off their couches and voted in Florida in 2000, and if a few tens of thousands paid just a little more attention to the rigged and dishonest ballot, W would be a meaningless initial and Friedrich would not be a case I’d be writing about.
For forever, I think, unions have participated in electoral politics. In the 1970s, union members who were unhappy about their unions spending money to support candidates and positions with which they disagreed, sued. They claimed the use of their dues for political purposes infringed on their First Amendment right. In 1977, in Abood v. Detroit Board of Education, the U.S. Supreme Court held that union members had to pay an amount equal to the proportional cost of costs associated with collective bargaining, administering contracts, and handling grievances. Not joining the union is fine, but you have to pay for the costs associated with the benefits you receive. (In Keller v. State Bar of California, the Court adopted the same principle for attorneys who don’t like what mandatory—you have to join to practice—bar associations do. Pay that portion of bar dues associated with discipline and regulation, and you can pass on the frills, said the Court.)
Alas, the 1970s are but a glimmer in the mirror of my past. Rebecca Friedrichs is a teacher on a mission and her attorney, Michael Carvin, is a whip-smart, silver-tongued, Far Right ideologue. And, per Lyle Denniston for SCOTUSblog.com, Mr. Carvin turned his clients into victims, forced into being represented by a union when they wanted to represent themselves.
There are several takeaways from this case, which will almost certainly be decided 5-4 in favor of Ms. Friedrichs and her fellow plaintiffs. First, precedent means little in these times, despite the fact that overturning precedents—especially those which are almost 40-years-old—is the hallmark of an activist court, despite the fact that the Court majority was appointed by presidents who claimed they did not want “activist judges.”
Second, and per Mr. Denniston’s reporting on the argument—I have not read the argument—the majority paid little attention to the practical ramifications of overturning a 40-year-old labor law regimen. Mr. Carvin was very willing to claim his case only affected public employee unions, but there can be little doubt but that, if his side, prevails, Right Wing private sector union members will be seeking the same remedy promptly.
Finally, and most depressingly, this case reflects yet again the triumph of the individual in our collective jurisprudence / politics. We all matter, for sure, but every time we turn away from the collective and toward the individual, a little bit of what makes our nation exceptional dies.