In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

As Professor Fisk previously observed, Justice Scalia’s concurring and dissenting opinion in Lehnert v. Ferris Faculty Association may provide some insight into how he will come out on the first question presented in Friedrichs. There, Justice Scalia rejected the Court’s application of a three-part test for identifying union activities that are chargeable to nonunion members. That test emphasized the “germane[ness]” of the activity to collective bargaining. Yet Justice Scalia called for the application of a “statutory duties” test, whereby charges to nonunion members “must at least be incurred in performance of the union’s statutory duties.” In so doing, Justice Scalia observed the following:

Our First Amendment jurisprudence . . . recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; 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. The “compelling state interest” that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of “free-riding” nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the “free riders” who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry — indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. 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. Thus, the free rider ship (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.

Professor Fisk — as well as the union respondents in both their brief in opposition to certiorari (courtesy of SCOTUSblog) and their brief on the merits — cite this part of Justice Scalia’s opinion to illustrate not only how “the union’s statutory duty of fair representation creates the free rider problem,” but also how the statutorily created free-rider problem gives rise to the “compelling state interest” in requiring nonunion members to contribute their fair share of bargaining costs.

Yet in an amici brief filed in support of the Friedrichs petitioners, a number of “state public policy organizations” attempt, among other things, to minimize the burden imposed by the duty of fair representation, and to distinguish the context of Justice Scalia’s Lehnert opinion from that of the present case.

The amici begin by insisting that the particularities of labor law offer no cover from First Amendment challenges:

The government cannot bootstrap its way around the First Amendment’s prohibition on compelled speech and association merely by claiming that nonmembers are receiving a “service” or “benefit” from the union. Indeed, the dissenting nonmembers disagree with the union’s positions, which is precisely why they refused to join the union in the first place. From the dissenters’ perspective, they are not receiving a “benefit” from the union at all, much less one that would justify a government-coerced payment to that entity. On the contrary, they are being forced to support the most outspoken advocates of public policy positions with which they strongly disagree.

Nor does “[t]he fact that a union voluntarily assumes a ‘duty of fair representation’ to advance the interests of all members of the bargaining group . . . affect the constitutional calculus,” say the amici:

All [the duty of fair representation] means is that unions may not bargain for agreements that expressly treat union members better than nonmembers. Far from being a special “benefit” that can justify coerced dues, the duty of fair representation is needed to avoid constitutional concerns about placing an employee’s livelihood in the hands of a private organization that he or she may vehemently oppose. Forcing an employee to be represented by an exclusive bargaining agent while also allowing the bargaining agent to relegate that individual to second-class status would raise grave due process concerns. The duty of fair representation is merely a constitutional floor on exclusive bargaining arrangements, not a compensable service that justifies government-compelled payments to the union.

As for Justice Scalia’s opinion in Lehnert, the amici argue that the union respondents’ reliance on the opinion for the purpose of upholding Abood is “misplaced”:

No party in Lehnert had asked the court to reconsider Abood, and none of the Justices did so. The sole question before the Court was how to distinguish between chargeable and non-chargeable expenses on the assumption that at least some costs were constitutionally chargeable to dissenting nonmembers. . . . [T]he articulation of a legal test to implement Abood is of course distinct from the antecedent question of whether Abood was correctly decided in the first place.

The amici then try to focus the Court’s attention on the merits of the statutory duties test itself, rather than on Justice Scalia’s justification for the test (cited above):

[E]ven the “statutory duties” test can be difficult to apply in light of the vague and open-ended delegations of authority in many of the relevant statutes. Far from supporting Abood’s ongoing validity, the splintered decision in Lehnert only underscores the profound practical difficulties that arise when a union is allowed to bill some, but not all, of its expenses to dissenting nonmembers. The better path forward is for this Court to hold that public employees may never be compelled by the government to financially support a private entity with which they vehemently disagree.

Needless to say, both sides seem to be actively courting Justice Scalia’s vote. The question then seems to be which characterization of his own opinion Justice Scalia will choose to adopt.