Friedrichs Oral Argument Commentary Round-Up

NPR legal affairs correspondent Nina Totenberg concluded that after this morning’s oral argument,  Abood v. Detroit Board of Education — the “[l]andmark Supreme Court decision” at the heart of Friedrichs — “is on life support.”

The major newspapers also called the argument in favor of petitioners. The New York Times observed that although “[t]he best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position,” the Justice “was consistently hostile” to the unions’ position. The Los Angeles Times noted that whereas “[i]n many of the court’s arguments, the justices ask questions of both sides and appear at least open to persuasion[,] . . . in Monday’s argument, all the justices sounded as though they had made their decision.” The Washington Post acknowledged that “[o]ral arguments are not always predictive, but it seemed clear that [California Solicitor General Edward C.] DuMont, California Teachers Association attorney David C. Frederick and Solicitor General Donald B. Verrilli Jr., representing the Obama administration, were treading against the tide.”

SCOTUSblog has posted two analyses of the argument. Amy Howe suggested that the lack of attention paid by the Justices to the second question in the case — “whether a public employee who doesn’t join a union can be required to affirmatively ‘opt out’ to receive a refund of the part of the fee that is not related to collective bargaining” — is telling, as “[t]his question only comes into play if the Justices rule against Friedrichs and uphold . . . [agency] fee[s].” Lyle Denniston separately notes a different issue that went unexamined by the Justices: the “underlying premise” of the case that “first, everything a union representing government workers does in bargaining over workers’ benefits is, solely because it is a union making the demands, an action driven by ideology and politics; and, second, because of the political nature of the union, every non-union worker represented by that union objects to subsidizing anything it demands.”

Politico similarly predicted an adverse outcome for public-sector unions: “Justices Samuel Alito and Anthony Kennedy appeared the most hostile to the unions’ position, but from the tenor of their remarks it seemed unlikely Chief Justice John Roberts or Justice Antonin Scalia would support the unions’ side. Conservative Justice Clarence Thomas was silent at the arguments, as is his wont, but is considered a near-certain vote for the plaintiffs.” Yet Politico also noted that striking down Abood could have far-reaching effects beyond public-sector unions and their members:

“The fear is that families are going to suffer,” said SEIU Local 509 member Ethel Everett of Springfield, Mass., a social worker at the Massachusetts Department of Children and Families. “There is a fear for us as an agency that deals with kids with abuse and neglect.”

One such fear, Everett said, is that diminished union power would affect her local’s ability to bargain over staffing levels, reducing the availability of social workers to at-risk children. “It’s larger than the fee,” she told POLITICO. “It’s about the families. It’s about the communities. It’s more about the work that we do. This is our work. This is our life’s work.”