Friedrichs: Son of Bush v. Gore

AP Photo/Jacquelyn Martin

People participate in a rally at the Supreme Court in Washington, Monday, January 11, 2016, as the court heard arguments in the Friedrichs v. California Teachers Association case. 

So, what’s changed in the 39 years since the Supreme Court last considered public-sector unionism?

In 1977, the Supreme Court justices were feeling their way to a decision in the landmark case Abood v. Detroit Board of Education, in which they upheld without dissent the right of public-sector unions to compel workers covered by their contracts to pay dues to that union even if they chose not to be members. Workers, the justices ruled, could withhold the portion of their dues that went to the unions’ political activities. But when it came to the bargaining of contracts, the representation of workers in grievance procedures, and all the activities that unions are obligated to perform for all the workers—members or not—whom they represent for those services, the non-members still had to ante up.

Without dissent. That means that not only Thurgood Marshall and William Brennan signed on to the majority decision. It means that William Rehnquist and Lewis Powell didn’t dissent. They did write separate concurring opinions, but concurrence is not dissent. That’s the Lewis Powell—author, before he was appointed to the Court, of the famous Powell memo to the U.S. Chamber of Commerce on how the right wing could (and must) prevail over unions and progressive groups.

Yesterday, however, when the Court held oral arguments on Friedrichs v. California Teachers Association, a case that could overturn Abood, the five conservative justices made fairly clear that they were inclined to scrap their predecessors’ handiwork. Whatever faint hopes the labor movement had entertained that it might retain the support of Antonin Scalia, who’d upheld the judgment of Abood in previous opinions, were made fainter still by Scalia’s comments apparently embracing the argument that collective bargaining with government agencies is inherently political, thereby absolving non-members from having to pay any union dues at all.

A look back at the opinions in Abood shows that the court was considering the same questions four decades ago that it is considering today. What’s changed is the conservative justices’ assessment of unions—reflecting, I’d argue, the changed assessments of both business and Republican elites.

The majority opinion in Abood was written by Potter Stewart, a centrist justice appointed by Dwight Eisenhower. Stewart explicitly rejected the argument that compelling a public employee to pay dues to his or her union to cover the expense of collective bargaining infringed on that employee’s First Amendment rights to free speech. He also rejected the claim that collective bargaining with a government was so inherently political that requiring dues constituted a suppression of political speech.

In the first instance, Stewart wrote, “a public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. … [E]very public employee is largely free to express his views, in public or private, orally or in writing.”

In the second instance, he wrote, “the differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights. Even those commentators most acutely aware of the distinctive nature of public-sector bargaining and most seriously concerned with its policy implications agree that ‘the union security issue in the public sector …  is fundamentally the same issue … as in the private sector.’”

Rehnquist’s concurring opinion was brief (four paragraphs) and, by today’s standards—regardless of ideology—surprising. In it, he noted that he had joined a dissent by Powell in Elrod v. Burns, an earlier case in which he objected to the Court’s decision to overturn the firing of a public employee because he belonged to the wrong political party. Powell’s dissent, which Rehnquist cited in his Abood opinion, had argued that there was a long tradition in the United States of patronage jobs that required belonging to one political party or another, and that such systems raised no First Amendment issues.

In Abood, Rehnquist wrote, “I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective bargaining expenses of a labor union.” Rehnquist believed that collective bargaining with the government was often political “in its normal meaning.” He just didn’t think that that raised any First Amendment issues.

Powell’s concurring opinion, in which he was joined by the Minnesota twins (Chief Justice Warren Burger and Associate Justice Harry Blackmun) is in some ways the most interesting, because he lays out just about every argument against Abood before he concurs. Compelling dues payments is in most instances a First Amendment violation, he argues; it infringes on political speech as surely as the campaign laws that the Court, one year previous, had rightly overturned with its decision in Buckley v. Valeo (there’s something wonderfully appropriate in Powell citing the decision that opened the floodgates for money in politics in the midst of his anti-union diatribe); collective bargaining with the government is distinctly political as bargaining with a private-sector employer is not.

The mystery of Powell’s opinion is why he called it a concurrence rather than a dissent. There’s virtually no indication in the opinion itself as to why that is. For that, we have to turn to his private correspondence with Stewart, which appears in a database of memos between the Burger Court justices. In it, he outlined his differences with Stewart, but allowed that there might, however improbably, be a needle that unions could thread in order to compel dues from non-members. “I would, at least, place the burden on a municipal union,” he wrote, “of proving explicitly that the fees that nonmembers are required to pay are used only to support the costs of contract negotiation and administration, and not to finance—directly or indirectly—‘political’ activities of the union.” In his opinion, however, Powell makes clear he thinks such needle-threading is probably impossible.

To read Powell’s opinion is to encounter just about every argument that the attorneys for the plaintiffs in Friedrichs made yesterday, and that the conservative justices raised in their questions. Yet Powell—every bit as anti-union as current Justice Samuel Alito, who in his previous opinions all but invited right-wing activists to challenge Abood—backed off. Unlike the conservative justices on today’s court, he felt compelled to call his dissent a concurrence.

What’s changed since 1977, I suspect, is the regard in which conservatives now hold collective bargaining itself. In acknowledging that pure collective bargaining, if such a thing were even ascertainable, might justify fees from nonmembers, and simply by the act of concurring, Powell was bowing to the reality that collective bargaining was an established American institution that conservatives couldn’t frontally attack. Today, in the private sector, it’s a disestablished institution. Over the past 60 years, the rate of unionization in the private sector has fallen from roughly 40 percent to just 6.6 percent. In the public sector, it’s at 35 percent, but some key states that had long afforded collective-bargaining rights to public employees—most notably Wisconsin and Indiana—have effectively repealed them in recent years at the behest of Republican governors who are far more anti-union than Republican governors in the years when the Court ruled on Abood. Time was when not just the Rockefeller liberals but the Nixon centrists in the GOP chose not to attack unions (well, most unions); when Republican members of Congress from the Northeast, Midwest, and West Coast had tens of thousands of union members in their districts, a number of whom voted Republican.

Under pressure from global competition, however, American business began pivoting away from its begrudging semi-accommodation with unions in the late 1970s, and in time, led by Ronald Reagan, Republican elected officials followed suit. Unions responded by backing a higher percentage of Democratic candidates and a lower percentage of Republicans, and as private-sector union membership plummeted, Republican elected officials had fewer members in their districts whom they felt compelled to defend. Business’s all-out war on unions became Republicans’ political war as well.

The difference between Powell and Alito, then, isn’t a difference of belief, but rather a difference in their sense of what is politically permissible. It’s the difference between the postwar business and Republican elites, which didn’t like unions but felt compelled to tolerate them in regions where they had members and power (not the South), and today’s business and Republican elites, which feel free to smash them now that their power has waned almost everywhere. That this smashing has coincided with and contributed to the shrinking of the American middle class—well, that no concern of theirs. 

Today, the unions big and effective enough to matter most at election time are those in public sector—chiefly, the two teachers unions: the American Federation of State, County and Municipal Employees (which also wages massive low-income voter mobilization campaigns, particularly in African American communities); and the Service Employees International Union (which does the same in Latino communities). These unions are also politically vulnerable, however, because they’re supported by taxpayers, many of whom once may have enjoyed comparable pay and benefits when the private sector was heavily unionized, but now no longer do.

By seeking to diminish these unions’ membership and budget, the conservative justices on the Court would effectively tilt elections toward the Republicans—which they already did in such campaign-finance decisions as Citizens United. Far from being the anomaly its authors said it would be, Bush v. Gore has spawned comparably partisan progenies: First, Citizens United, and now, in all likelihood, Friedrichs v. CTA.

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