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Abood: The Ghoul Lives to See Another Day

By: John C. Eastman
April 4, 2016

here are two high-profile cases where Justice Scalia’s unfortunate and untimely death is predicted to have a dramatic, outcome-determinative difference because an evenly-divided Court would result in the affirmation of a lower court decision that would otherwise be likely to be reversed. The first of those cases, Friedrichs v. California Teachers Association, was decided last week with a short, one-sentence per curiam order: “The judgment is affirmed by an equally divided Court.” The judgment that was affirmed was the prior decision of the Ninth Circuit Court of Appeals upholding California’s compulsory union dues mandate. What a travesty. Rebecca Friedrichs will now be required to contribute to the political coffers of the public employee union that advocates for causes with which she disagrees, as a condition of her continued employment as a school teacher.

What is more, the Supreme Court’s decades-old precedent that allowed for such a result was, by all accounts, erroneously decided and almost certain to be overruled. In Abood v. Detroit Board of Education (1977), the Court took a rule mandating the payment of collective bargaining fees even from non-union members from the private sector union context and applied it, without any analysis, to the public union context. “Public employees are not basically different from private employees,” the Court held.

But public employees are different, and that difference has increasingly been recognized in majority opinions by the high Court, four years ago in Knox v. SEIU, and two years ago in Harris v. Quinn, both authored by Justice Alito. As we argued in the brief we filed in Harris (and also back in Knox), collective bargaining in the public sector is inherently political. When a public employee union bargains for higher wages and other benefits, it is arguing for a public policy that devotes more resources to programs staffed by its members than other programs. Even a public employee union that represents every employee in every program in state government pushes a policy agenda when collective bargaining for more salary and benefits, in favor of larger rather than smaller government, higher rather than lower taxes. Abood held that a union cannot force nonmembers to support its political and ideological expenditures that are unrelated to collective bargaining, but that distinction is really nonsensical in the public employee union context. The unions in Knox had even argued that because all public policy effect public employee union members, the overt political activity of the unions—including campaign support for ballot measures—was simply “lobbying…the electorate.” As such, it was related to collective bargaining and could therefore be assessed against non-union employees via compulsory union dues. The Court rejected that argument in Knox, with a strong opinion by Justice Alito that went so far as to question where the existing compulsory dues system violated the First Amendment. “By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate,” noted the Court. That line drew a strident dissent by four justices in two separate opinions (including by the two justices who otherwise agreed with the judgment in the case), but it was clear to Court observers across the ideological spectrum that the pro-public union Abood regime was in serious trouble.

The decision two years ago in Harris v. Quinn dealt another, near-mortal blow to Abood. At issue was whether in-home care givers could be compelled to contribute to the public employee union coffers—the annual amount in Illinois was about $3.6 million!—merely because they were paid out of state Medicaid funds (made available because the State of Illinois found it much more cost effective to pay for in-home care than to pay for care in a medical facility).  By the same 5-4 lineup that divided over the First Amendment language in Knox, the Harris Court held that Abood could not be expanded to cover not just “full-fledged public employees” but also those who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.” And in the process, the Court hammered in another big nail in the coffin of Abood, calling its “analysis questionable on several grounds,” several of which “have become more evident or troubling in the years since” Abood was decided.

Tracing the history of the precedent on which Abood relied, Justice Alito cited a dissenting opinion by Justice Douglas, for example, which had urged a narrow interpretation of that precedent lest the Court “give carte blanche to any legislature to put at least professional people into goose-stepping brigades [that] are not compatible with the First Amendment.” Ouch.

But there is more. “Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends,” wrote Justice Alito for the Court. “Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable”…or nonchargeable,” he added, setting up one of the critical elements for overruling prior precedent despite stare decisis concerns. And “[f]inally, a critical pillar of theAbood Court’s analysis rests on an unsupported empirical assumption,” the Justice asserted. One can almost see the ghoul of Abood walking ever more slowly, arms outstretched, as its legs are shot out from under it piece by piece.

There is even more. “A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked,” noted the Court. Moreover, a compulsory “agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join,” and “No such showing has been made.” These two statements cut right to the heart of arguments that have previously been relied upon to uphold compulsory union dues. The ghoul is left crawling along on stubs.

The dissent authored by Justice Kagan appeared to recognize the weakened state in which the majority’s opinion leaves Abood, trying mightily to reconcile her conflicting claims that Abood requires that the Illinois law be upheld and that Abood remains good law even after the Court’s decision striking down the Illinois law. And trying even more mightily to pretend that Abood remains good law. “Today’s majority cannot resist taking potshots at Abood,” she writes, “but it ignores the petitioners’ invitation to depart from principles of stare decisis.” Nor could it, she claims, because “[o]ur precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.” Justice Kagan then devotes half of her 25-page dissenting opinion trying to convince at least one member of the Court’s majority why the “Court’s view of stare decisis makes plain why the majority cannot—and did not—overturn Abood.” The majority “does not pretend to have the requisite justifications to overrule Abood,” she claims, adding that “Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so. Yet they will also know that the majority could not, even after receiving full-dress briefing and argument, come up with reasons anywhere near sufficient to reverse the decision.” “Abood remains the law,” she proclaims, as if saying it repeatedly will make it so.

Maybe Justice Kagan was trying to reveal an internal dissension among the Justices who joined the majority opinion, trying to expose that there was at least one of those Justices who would not overrule Abood outright when a case requiring resolution of that issue presented itself. But today’s decision demonstrates she was unsuccessful in that effort, though fortuna in the guise of Justice Scalia’s untimely death, coupled with a decision by the Ninth Circuit that refused to follow the logic of Knox and Harris, came to her rescue.

This, to the great detriment not only of Rebecca Friedrichs but of the First Amendment as well. The prohibition on compelled speech and association used to be a sine qua non of First Amendment jurisprudence. The public union decision in Abood was an anomaly that should never have seen the light of day, and was scheduled to final burial. Its ultimate demise must now await another day.