Another Blow to Unions Appears on the Way at SCOTUS

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Activists Rally In Front Of U.S. Supreme Court
These anti-union protesters may say they "trust teachers," but they really trust a conservative majority on the Court to undermine organized labor.Photo: Mark Wilson/2016 Getty Images

It hasn’t been a good century so far for the U.S. labor movement. And another blow could well be on the way from the U.S. Supreme Court, which heard oral arguments today in a case involving mandatory “agency fees” from public employees to compensate unions for the cost of providing collective-bargaining services. By all accounts, a majority of the Court, including the usual swing vote Justice Anthony Kennedy, seemed to be sympathetic to the plaintiffs’ claims that their First Amendment rights were being abrogated because public-sector employment contracts invariably involve political issues.

The New York Times’ Adam Liptak cut to the chase:

The justices appeared divided along familiar lines during an extended argument over whether government workers who choose not to join unions may nonetheless be required to help pay for collective bargaining. The court’s conservative majority appeared ready to say that such compelled financial support violates the First Amendment.

Collective bargaining, Justice Anthony M. Kennedy said, is inherently political when the government is the employer, and issues like merit pay, promotions and classroom size are subject to negotiation.

The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile on Monday.

“The problem is that everything that is bargained for with the government is within the political sphere,” he said.

That’s the crux of the issue, and seems to lead in the ultimate direction of treating public-sector unions as illegitimate. 

Unions say the teachers’ First Amendment argument is a ruse. Nonmembers are already entitled to refunds of payments spent on political activities like advertising to support a political candidate. Collective bargaining is different, the unions say, adding that the plaintiffs are seeking to reap the benefits of such bargaining without paying their fair share of the cost.

The larger threat, the unions and their supporters say, is that a decision in the plaintiffs’ favor would encourage many workers who are perfectly happy with the work of their unions to make the economically rational decision to opt out of paying for it.

No question about it. And if SCOTUS goes in the direction it indicated today, conservatives will cheer, not just because they tend to hate unions these days, but because the public sector has been the most robust area for union expansion for quite some time. And there is, of course, a partisan dimension, as the Washington Post’s Robert Barnes points out:

Public employee unions have become a major player in Democratic politics, generating campaign contributions and on-the-ground support for candidates. At the same time, disputes between the unions and Republican governors have become frequent and bitter.

The actual defendant in the case, the California Teachers Association, has been an important part of the coalition that has helped Democrats break decades of gridlock in Sacramento. A decision adverse to unions would not turn the Golden State over to Republicans overnight; that party has worked hard to alienate Californians on a broad range of issues. But it would be a blow to all kinds of unions, and to the progressive politics they tend to support.