Months after reaching a 4-4 tie in Friedrichs v. California Teachers Association, the Supreme Court has denied the petitioners’ request for a rehearing. The Court waited until its final conference of the Term to vote on the petition, after postponing its decision eight times since April. No opinion was included with the Court’s denial. While today’s announcement effectively brings the ... More »
In case you missed it, the Supreme Court has handed down a 4-4 affirmance of the lower court’s opinion in Friedrichs v. California Teachers Association. The Court’s 1977 opinion in Abood v. Detroit Board of Education thus remains good law, and public-sector unions may continue to collect agency fees from nonmembers. More »
With yesterday’s news of Justice Scalia’s unexpected passing, the consensus seems to be that the Supreme Court will reach a split 4-4 decision in Friedrichs v. California Teachers Association. In such an occurrence, the Ninth Circuit’s decision below — which upheld California’s fair-share fee requirement pursuant to the principles announced in Abood v. Detroit Board of Education — would stand. Alt... More »
If Citizens United “promised something like a level playing field” for corporate and union political spending, what might Friedrichs do to upset that supposed equilibrium? In case you missed it, Adam Liptak examined this question today in the New York Times. Liptak notes at the outset of his article that the “level playing field” has proven to be largely illusory. He writes... More »
Friedrichs is a case about fair share fees in the public sector. The question is whether the First Amendment prohibits public employers from bargaining and enforcing fair share agreements. So it was notable that one of the first questions during Monday’s oral argument – and the first question that Justice Kennedy asked petitioners’ counsel – concerned the private sector. Here’s the exchange: Justi... More »
This week the Supreme Court heard oral arguments in the Friedrichs case, and unions and their supporters are bracing for the worst. The legal case in support of the Abood precedent has been persuasively defended by Benjamin Sachs, Katherine Fisk, and Andrew Strom on this blog. Alas, if the oral arguments provide a guide, a majority of the Court disagrees. What remains subject to much debate is ... More »
Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School. Trying to read the tea leaves in oral argument questions can be a risky proposition. But, one particular exchange during Monday’s argument in Friedrichs v. California Teachers Association between Chief Justice John Roberts and California Solicitor General Edward DuMont is worth a second read because of what it tells us about ... More »
At the Friedrichs oral argument, Justice Ginsburg asked Michael Carvin, the attorney for Rebecca Friedrichs, how a decision overruling Abood v. Detroit Board of Education, would affect Supreme Court decisions authorizing mandatory fees to bar associations. Whether intentional or not, Carvin’s answer was more than a little misleading. To back up, a number of states require all lawyers to pay dues ... More »
It has been widely reported that the oral argument in Friedrichs v. California Teachers Association suggests that five justices are poised to strike down fair share fees for public-sector employees in the twenty-plus states that allow them. The crucial votes were thought to be Justice Kennedy (the swing vote, and also the author of the Garcetti opinion limiting government employee free speech rig... More »
Note: This post was originally published on October 5th, and is being re-published in light of yesterday’s oral arguments in Friedrichs. Given Justice Scalia’s consistent view that public employees have minimal free speech rights, doctrinal consistency should require him to reject the First Amendment challenge to union fair share fees in Friedrichs. As Professor Sachs points out, Justice Scalia (... More »