By Brian Mahoney and Josh Gerstein
Published: 01/11/16 – 11:54 AM EST
Updated: 01/11/16 – 02:26 PM EST
The Supreme Court appeared ready Monday to bar public-sector unions from collecting “fair-share” fees from non-members, a move that could deal a political blow to Democrats by reducing union membership drastically and draining union coffers.
At oral arguments in a case brought by California public school teachers who object to the requirement, the court’s conservative wing appeared deeply skeptical of a 1977 high court decision upholding the constitutionality of such fees.
Justices Samuel Alito and Anthony Kennedy appeared the most hostile to the unions’ position, but from the tenor of their remarks it seemed unlikely Chief Justice John Roberts or Justice Antonin Scalia would support the unions’ side. Conservative Justice Clarence Thomas was silent at the arguments, as is his wont, but is considered a near-certain vote for the plaintiffs.
Under current law, public employees covered by union contracts may opt out of paying any fees toward the political activity of their union. But states may pass laws that require those dissenting members to pay a fee to cover their portion of collective bargaining costs. Such provisions, on the books in about two dozen states, are being challenged in the case by Rebecca Friedrichs and eight other California teachers.
The fair-share or “agency” fee is widely seen as a compromise between the First Amendment rights of public employees who may not wish to join a union and the material interest of the unions, which are required by law to bargain on behalf of all members of a given unit, regardless of membership status.
The most plausible conservative swing vote in Friedrichs v. California Teachers Association, somewhat surprisingly, was Scalia, who has supported fair-share fees in past decisions. But at Monday’s oral arguments he seemed sympathetic to the plaintiffs, joining with other conservatives who said that they saw no clear way to separate bargaining issues from political issues when public employees’ salaries and working conditions were at stake.
“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Scalia said.
Scalia said he was sympathetic to “the need of a state to have an efficient system for dealing with its employees,” but he also appeared skeptical that prohibiting fair-share fees would devastate public-sector unions.
“Why do you think the union would not survive without these fees charged to non-members?” he asked California Solicitor General Edward DuMont. “Federal agency unions do not charge agency fees to non-members, and they seem to survive; indeed, they prosper.”
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