As OnLabor contributors have previously noted, Justice Scalia has been identified as the potential swing vote in the case. However, this early exchange between petitioners’ counsel (Michael Carvin of Jones Day) and Justice Scalia does not seem to bode well for the Friedrichs respondents:
JUSTICE SCALIA: Mr. Carvin, is — is it okay to force somebody to contribute to a cause that he does believe in?
MR. CARVIN: I wouldn’t think, Your Honor, that you could force Republicans to give contributions.
JUSTICE SCALIA: Yes. That’s — that’s what I’m thinking. Could you enact a law? Let’s say the national political parties are in trouble so they enact a law that says all — all members of the Republican party, if you want to be a member you have to contribute so much money.
MR. CARVIN: No.
JUSTICE SCALIA: Is that okay?
MR. CARVIN: No, it’s not, and that’s because the bedrock principle, as Harris made clear, is not whether or not you vividly oppose what they’re saying —
JUSTICE SCALIA: Right.
MR. CARVIN: — it’s because you don’t wish to subsidize it.
JUSTICE SCALIA: Exactly. So I don’t know why you’re putting so much emphasis on the fact that your — your clients oppose. It really wouldn’t matter, would it?
MR. CARVIN: No. And I don’t — I did want to point out that that’s the reason that they’ve brought this lawsuit. But — but no, you’re a thousand percent right, Your Honor.
Justice Scalia later pressed California Solicitor General Edward DuMont on the distinction between the “political or legislative sphere” and “the collective bargaining sphere,” noting the “major argument made by the other side” that “everything that is collectively bargained is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of — all of those questions are necessarily political questions.”
Justice Scalia also had sharp words for David Frederick, who argued on behalf of the union respondents. The Justice indicated that he “absolutely [did not] understand . . . why . . . agency fees [would] enable the city to do things that it couldn’t do before,” and further stated that he “s[aw] no connection whatever between . . . what the city is willing to give in collective bargaining and whether you have agency fees.” And, during U.S. Solicitor General Donald Verrilli’s argument, Justice Scalia reiterated what he saw as the major distinction between public and private employers:
[T]he problem is that [the government] is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes the — that changes the situation in a way that — that may require a change of the rule. It’s one thing to provide it for private employers. It’s another thing to provide it for the government, where every matter bargained for is a matter of public interest.
We’ll be sure to post links to commentary on today’s oral argument as it starts to trickle in.