The Court’s Scott Walker Moment

On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time.

In Knox v. Service Employees International Union, the five—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—reached out to decide a question that was not argued or briefed; their opinion all but begs right-wing advocacy groups and public employers to use its emerging First-Amendment jurisprudence to take down public-employee unions and in essence find a Southern-style “right to work” law in the Constitution. In the days when right-wingers favored judicial restraint, this might have been called “judicial activism.” 

It is the Court’s Scott Walker moment. 

The case concerned the rules by which unions can assess “agency fees” payable by non-members who benefit from the unions’ collective bargaining efforts. Though public employees can’t be forced to join unions, it is legal for governments to contract with unions like SEIU to provide representation to all employees in a bargaining unit. Under the contract, non-members can be charged an “agency fee” that reimburses the union for the costs of negotiating contracts and handling grievances.

However, under prior precedent, non-members can’t be forced to pay for various political activities by the union. This, the Court has held, violates the First Amendment rule against “compelled speech.” So every year, the union takes the applicable dues payment for members, reduces it by the percentage of last year’s dues that went for political activities, and charges non-members the remaining percentage of dues. The rationale for the remaining charge is that non-members would otherwise benefit from the union’s efforts as “free riders.”

In 2005, California Governor Arnold Schwarzenegger called for a special election to approve two anti-union ballot provisions. SEIU responded to this unexpected crisis by temporarily raising dues to amass a “Political Fight-Back Fund.” Unlike with ordinary dues payments, non-members weren’t given a chance to opt out of the fund.

In an opinion by Alito, the Court held that emergency funds were not exempt from the general rule requiring objectors to opt out. That’s not a huge surprise. What was a surprise—and an ominous one—is the majority’s second holding: even allowing non-members to opt out of such an assessment would not cure the First Amendment violation. Instead, it said, the Constitution requires the union to collect the assessment only from members who specifically opt in, giving notice that they want their checks reduced to pay for the special political campaign.

That new rule would impose substantial administrative costs on the union, and reduce the amount it collects. But more significantly, the majority’s rationale would seem to apply to all agency payments by non-members. And indeed, language in the opinion suggests that the majority thinks the whole idea of agency fees is a violation of the First Amendment. “[C] compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,’” the Court said, quoting an earlier case.  “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

If I were the National Right to Work Legal Defense Committee, these words might sound to me very much like, “Bring us a case and we will void the agency shop altogether.” That’s particularly true given language later in the opinion calling the entire “free rider” rationale into question. If workers can’t be required to join a union or to pay agency fees, then the so-called “right to work” zone will cover 50 states and Puerto Rico.

Though the result was 7-2, Justice Sonia Sotomayor, joined only by Justice Ginsburg, concurred only in the result. The union should have offered an opt-out, she said. However, “I cannot agree with the majority’s decision address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing”—meaning the new constitutional “opt in only rule,” which was not argued by the parties and contradicts a long line of precedent. In a dissent, Justice Stephen Breyer, joined by Justice Elena Kagan, made the same point. The “opt-in” rule “runs directly counter to precedent,” he wrote. “No party asked that we [impose the rule]. The matter has not been fully argued in this Court or in the Court below.”

Breyer noted that “each reason the Court offers in support of its ‘opt-in’ conclusion seems in logic to apply, not just to special assessments, but to ordinary yearly fee charges as well.” He accused the five conservative judges of putting a finger in the scales of the ongoing fight over public-sector unions. “[T]he opinion will play a central role in an ongoing, intense political debate.” To underline his concern, Breyer took the unusual step of summarizing his dissent from the bench, while Alito, a poor winner, glowered at him like an angry headmaster five seats away.

Public employee unions have had a bad spring. In the long run, Knox may warn of a worse defeat than anything that happened in Wisconsin.

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