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 rights) and Justice Scalia (whose prior opinions acknowledged, as Ben Sachs and I have explained here, that unions’ duty of fair representation creates a free rider problem).  But their questions at oral argument were hostile to the union.  Because Kennedy and Scalia are not known to play the devil’s advocate at argument, it seems plausible to speculate that there are five votes to overrule Abood and strike down public-sector fair share fees.  Here I explore what the questioning suggests about three crucial points that a decision to overrule Abood would presumably make:  (1) How the Court might abandon its usual deference to state governments in managing their workforce; (2) How the Court might find subsidies for collective bargaining to compel speech; and (3) How the Court would justify a First Amendment right to refuse to pay for speech that, if an employee were to make it individually, would be unprotected under Garcetti and Pickering.

(1) Deference to state government employers.  Key to the conservatives’ reluctance to defer to states as employers are three notions: (a) agency fees are not an employer-employee matter, (b) they are unnecessary, and (c) they are political.  Chief Justice Roberts doubted the California’s Solicitor General’s assertion that states have discretion to manage their workforce by saying “you’re doing something more than simply regulating the employment relationship.”  Justice Scalia said he “sympathize[d] with the need of the State to have an efficient system for dealing with its employees.”  But, he asked, “Why do you think that the union would not survive without these fees charged to nonmembers of the union?”  This reflects a big change in Scalia’s apparent thinking even since the argument in Harris v. Quinn (and, of course, his opinion in Lehnert), when he seemed sympathetic to the free-rider justification for requiring employees to pay for the costs of bargaining.  Roberts also suggested “the free-rider concern that’s been raised is really insignificant” because the overwhelming majority of California teachers support the CTA.

Michael Carvin, representing petitioners, distinguished Justice Kennedy’s opinion in Garcetti (which holds that public employers can restrict on the job speech about work-related matters) by saying the Court defers to government employers only when they restrict employee speech but not when they compel it.  While no justice adopted this view, Justice Kennedy interjected that agency fees support positions some teachers oppose on matters of public concern.

Deference to states – as employers or in anything else – is usually just a neutral sounding way of approving a decision the justices support on the merits.  And so it may be here.

(2) Agency fees as compelled speech.  Justices Scalia, Kennedy, and Roberts all argued that collective bargaining involves political speech and mandatory fees are therefore compelled political speech.  Justice Frankfurter said in the Court’s earliest union dues cases that it is difficult to distinguish between political and nonpolitical union speech, but where Frankfurter saw that as a reason to reject any limits on union dues, it’s now an argument for prohibiting any mandatory fees.  As Justice Scalia said yesterday,  “everything that is collectively bargained is within the political sphere, almost by definition.”  Even the most nonpolitical subjects of bargaining, such as mileage reimbursement rates for government employees, could be political; as Roberts said, “If you give more mileage expenses, that costs more money. And the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”  Kennedy twice noted that the CTA charges nonmembers for public relations work in support of its collective bargaining positions, including on teacher job security, and also said, “When you are dealing with a governmental agency, many critical points are matters of public concern.”

Government employee working conditions are matters of public concern, for exactly the reasons the justices said.  The problem is that all public sector employment involves compelling or prohibiting speech – cops must give Miranda warnings, teachers must teach the approved curriculum.  To find that agency fees for collective bargaining compel speech, the Court would have to explain why payment of money is unconstitutional in a regime in which law appoints the union to speak on behalf of nonmembers.  At the beginning of petitioner’s argument, Justice Ginsburg asked whether exclusive representation is permissible, and Carvin replied “That’s fine with us.”   If the petitioners win, however, the next case will surely be one arguing that because paying fees to a collective bargaining agent is unconstitutional, it is equally unconstitutional for government to appoint a union to speak on an objecting employee’s behalf.

(3) Government employee free speech rights.  The third, and perhaps most difficult, issue the Court would have to address to overrule Abood would be to explain why there is a First Amendment right to refuse to subsidize a union to speak on work issues (pay and working conditions) that government employees have no First Amendment right to complain about under Garcetti and Pickering.  One way justices raised this was asking about whether the government could tax employees to pay for the services that agency fees support.  Justice Alito immediately rejected this: “Is there any history in American labor management relations, at least going back, I don’t know what, 75, 80 years of employers paying for unions?”   Justice Scalia asked whether such a tax would be something the union can bargain for, but Carvin said “there’s no way the public employer, particularly because agency fees as a matter of statute, could all of a sudden say, sure, we’re going to take our taxpayer dollars and start giving money to unions, because they’ve always been funded through voluntary contributions.”

The efforts to distinguish Pickering and Garcetti were varied.  The most mystifying, but one that surfaced repeatedly, was first articulated by Justice Kennedy: “But, philosophically, if you use Pickering in this case, you’re committing error of composition.  You’re comparing a whole group of persons who have their views coerced or compelled against one person that – that – Pickering is just inapplicable on that ground.”  The same point arose during Solicitor General Verrilli’s argument.  Here Justice Alito said that Pickering and Garcetti limit the rights of government employees as individuals, but “this is a rule that applies to a huge category of employees.”  The notion that Pickering/Garcetti apply only to individuals and that the right not to pay fees is a group right makes no sense.  If an individual employee has no right under Pickering to complain about pay or working conditions, it’s hard to know why an individual employee has a right to refuse to pay money to support speech on the exact same issues.  And just as all government employees have no rights to speak on the job under Pickering/Garcetti, all appear to have the right to refuse to pay fees.  That’s not an error of composition; that’s just the way constitutional rights work.

The other way in which Kennedy appeared to distinguish Pickering/Garcetti was whether union collective bargaining is workplace speech.  He said to union counsel David Frederick that “we could assume that a State is always benefited and is more efficient if it can suppress speech,” to which Frederick replied, “And your decision in Garcetti, Justice Kennedy, allowed for the suppression of the speech by the prosecutor who objected –.”  Justice Kennedy cut him off and said, “That was in the workplace.  It doesn’t apply to merit pay.  It didn’t apply to the protection of under-performing teachers.  It didn’t apply to classroom size. It didn’t apply to educational objectives.”

We’ve known all along that the key to unions defending agency fees was to convince five justices that the fees are necessary to support the government’s interests as employers.  It now appears that five justices think agency fees are unnecessary and that they fund political speech.  If that is where the Court goes, about the only free speech rights government employees will have will be the right to refuse to pay fees to their union.  The result will be either that the union and its members will be compelled to spend their money providing services to non-payers or they can decide to stop providing those services to free riders at all.