In Union Case, Counting to Five to Overrule Precedent

      The Supreme Court is about to reverse a 40-year-old precedent important to the financial solvency of public employee unions for no good reason except that the conservative justices have the votes to do it. Among the 200-plus reversals of precedents in the court’s history, this one will rank low in legal logic and high in pure political muscle-flexing.
      To be clear, the court has said in several decisions that the principle known as stare decisis is not an inexorable command that precedents stay on the books. Prior decisions can be overruled, the court has said, if they prove to be unworkable or if underlying legal doctrines change. But the court’s credibility suffers if it changes course for no reason except a change in the court’s membership.
      The precedent at stake, Abood v. Detroit Board of Education (1977), allows government employee unions, when authorized by state law, to collect so-called “agency” or “fair share” fees from non-members to pay for the costs of collective bargaining. The bifurcated decision, written by the Republican-appointed moderate justice Potter Stewart, required on free-speech grounds that the unions prevent any use of the mandatory fees from non-members for lobbying or political purposes outside collective bargaining.
      Twice in the past four years, the Roberts Court’s five conservatives have joined in opinions criticizing the old decision but without overruling it. Then they took up a case directly challenging the precedent engineered by the Center for Individual Rights, a conservative Washington-based public interest law firm. The center recruited 10 California non-union teachers who object to paying fees to the California Teachers Association to serve as plaintiffs in the new case, Friedrichs v. California Teachers Association.
      As Justice Stephen G. Breyer remarked in oral arguments last week [Jan. 11], Abood was “a compromise.” It balanced the free-speech concerns of non-union members not to pay for political advocacy with which they disagreed against the unions’ interest in financing collective bargaining that by law benefits members and non-members alike.
      Admittedly, four justices would have barred the mandatory fees: Chief Justice Warren E. Burger and associate justices Harry A. Blackmun, Lewis F. Powell Jr., and William H. Rehnquist. Nevertheless, the precedent stayed on the books, and unions established accounting procedures to separate “chargeable” collective bargaining expenses from “non-chargeable” lobbying or political advocacy.
      Even if sometimes contentious, these arrangements have not proved to be unworkable. Nor have there been any changes in underlying legal doctrines to undermine Abood’s compromise. But groups opposed to public employee unions have gained political ground in recent years. Notably, two states that previously allowed public unions to collect agency fees, Michigan and Wisconsin, changed course after Republican wins in gubernatorial and legislative elections.
      The climate at the Supreme Court was also changing. In a 1991 decision, Justice Antonin Scalia acknowledged public employee unions’ interest in preventing “free ridership” by non-members. But Scalia joined the two recent decisions, both written by conservative Samuel A. Alito Jr., criticizing Abood and all but inviting opponents to ask for it to be overruled.
      In neither of the decisions —  Knox v. Service Employee International Union (2012) or Harris v. Quinn (2014) — did Alito contend that Abood is simply unworkable. In the second of the rulings, he called Abood “an anomaly.” It is not. Indeed, federal labor law allows agency fees in private sector unions, and 23 states plus the District of Columbia still allow public employee unions to collect “fair share fees” from non-members.
      Plaintiffs’ attorney Michael Carvin had sympathetic ears from the five Roberts Court conservatives during oral arguments, but the liberal justice Elena Kagan asked him what “special justification” he had for overruling Abood. Carvin had none. “Abood erroneously denies a fundamental right,” he said. As Kagan remarked, under that logic any decision rejecting a claimed right would lose any stare decisis effect. Respect for precedent would be out the window.
      By coincidence, the court overturned two precedents the very next day after the arguments in Friedrichs. In Hurst v. Florida, the court overruled two decisions from the 1980s that had previously upheld Florida’s capital punishment system, which gave judges the power to make findings necessary to impose the death penalty. Those old rulings, Justice Sonia Sotomayor explained, were inconsistent with decisions over the past 15 years generally requiring juries not judges to make factual findings needed to raise a defendant’s sentence. “Time and subsequent decisions have washed away the holdings” of the prior cases, Sotomayor wrote.
      Hurst marked the twelfth time that the Roberts Court has explicitly overruled a prior decision. Liberals will remember as the most important example the same-sex marriage decision, Obergfell v. Hodges (2015). For the 5-4 majority, Justice Anthony M. Kennedy explained how the logic of a 1972 decision refusing to recognize same-sex marriages had been undermined by a succession of rulings recognizing gay rights.
      In other decisions, however, the Roberts Court conservatives have run roughshod over precedents with little if any special justification — notably, the campaign finance ruling in Citizens United v. Federal Election Commission (2010) and the Second Amendment decision later that year in McDonald v. Chicago. At his confirmation hearing, Roberts acknowledged that overturning precedents causes “a shock” to the legal system. From all that appeared in last week’s arguments, public employee unions need to brace themselves for such a shock before the justices wrap up this spring.