Looks Like Justice Scalia Won't Be Saving Public-Sector Unions After All

Union advocates had hoped the conservative justice would lend them a hand in a big labor case.
In a 1991 case, Supreme Court Justice Antonin Scalia explained why requiring nonunion members to pay union dues could be reco
In a 1991 case, Supreme Court Justice Antonin Scalia explained why requiring nonunion members to pay union dues could be reconciled with First Amendment rights. In oral arguments for Friedrichs v. California Teachers Association this week, he has seemed skeptical of this position.

WASHINGTON -- Public unions clearly appeared to have taken a beating Monday during oral arguments in a major case the Supreme Court is considering.

As much as they tried, the lawyers supporting unions in Friedrichs v. California Teachers Association couldn't seem to convince a majority of the justices that collecting so-called "fair-share" or agency fees from nonunion workers does not violate the First Amendment.

But perhaps most disappointing for labor advocates is that one potential ally going into the hearing, Justice Antonin Scalia, turned out to be no ally at all.

"The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition," Scalia told Edward Dumont, the California solicitor general who argued on behalf of public unions.

"Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority?" he asked. "All of those questions are necessarily political questions. That's ­the major argument made by the other side."

That charge -- that agency fees violate nonunion workers' free-speech rights -- could undo a nearly 40-year-old precedent that said precisely the opposite: that collecting the fees is "constitutionally justified."

Scalia was considered a possible wildcard vote in favor of the fees because of statements he has made in other politically charged disputes raising similar issues as Friedrichs.

In one 1991 labor case, for example, Scalia explained very compellingly why the "free rider" problem posed by nonpaying nonunion workers could be easily reconciled with First Amendment concerns.

"Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them," Scalia wrote, "or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost."

Scalia called this a "constitutional rule" aimed at the "elimination of the inequity arising from the fact that some union activity redounds to the benefit of free-riding nonmembers."

He reasoned that free-ridership existed because labor law itself created it. And thus, the law "requires the union to carry" and "to go out of its way to benefit" these nonunion workers, "even at the expense of its other interests."

Scalia went on: "In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others."

Lofty and comforting words for public unions. But all of them appeared relegated to history during the Friedrichs hearing on Monday, with Scalia sounding every bit as skeptical as his conservative colleagues of the unions' arguments for collecting fees from nonmembers.

At one point, he even suggested that "a change of the rule" that has prevailed for nearly 40 years in these labor cases may be the way to go moving forward.

Something must have changed since 1991 if Scalia indeed ends up reversing course.