THE LABOUR movement in America has seen better days. In the 1960s, about a third of American workers were members of unions; today, with right-to-work laws in place in 25 states, the figure hovers at 10%. This spring, when the Supreme Court issues a decision in Friedrichs v California Teachers Association, the decline may well accelerate. Rebecca Friedrichs, a public-school teacher in California who left her union because she did not share its priorities, is challenging a rule that says non-members must pay “fair-share fees” to cover the costs of collective bargaining. It violates the First Amendment right to freedom of speech, she and nine other teachers say, to be forced to subsidise an organisation whose politics they reject. In 1977, the Court ruled in Abood v Detroit Board of Education that while unions could not charge non-members for political activities like lobbying for causes or candidates, states could allow unions to collect fees to support negotiations over workplace matters like wages and benefits. In the oral argument on January 11th, Michael Carvin, the teachers’ lawyer, questioned this distinction. Negotiating teachers’ contracts is an essentially political endeavour, he said, because they involve controversial questions of “public concern”. The fair-share or “agency fee” model coerces his clients to espouse an “ideological viewpoint which they oppose” and violates “basic speech and association rights”.



The tenor of the hearing suggested that a majority of the justices are keen to abandon Abood and end the mandatory fees—freeing Ms Friedrichs and tens of millions of public-sector workers from the duty of writing cheques to the unions who negotiate on their behalf. Justice Samuel Alito sent strong hints of this willingness in two recent cases, calling Abood “something of an anomaly” in 2012. This view earned the apparent endorsement of Justice Anthony Kennedy, who noted that under the current regime teachers who oppose seniority-based salaries nevertheless must fund a union’s “public relations campaign to protest merit pay”. It “makes no sense”, Justice Kennedy complained, to tell teachers who “strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size” that they must pay to support those positions but are otherwise “free to go out and argue against” them.

The defence of Abood by the court’s left wing had the ring of a somewhat desperate rear-guard action. Justices Elena Kagan and Sonia Sotomayor told Mr Carvin that states should be free to decide how to manage their relationship with public-sector employees. When the “government acts as employer”, Justice Kagan said, “it’s not a constitutional problem” for it to use an agency-shop model if it so chooses. Justice Stephen Breyer suggested that the plaintiff’s complaint is “pretty far removed from the heart of the First Amendment” since employees “can say what they want” outside the bargaining room. All three suggested that it would be a bad idea to deviate from the court’s preference for upholding its own precedents. For Justice Kagan, the disgruntled teachers have a “heavy burden” in “ask[ing] us to overrule a decision” as “there are tens of thousands of contracts with these [agency-fee] provisions” affecting “millions of employees”. Justice Breyer wondered “what happens to the country thinking of us as a kind of stability” if the court votes to “overrule a compromise that was worked out over 40 years”.

That point may have been designed to appeal to Chief Justice John Roberts, who, according to Elizabeth Wydra of the Constitutional Accountability Centre “cares about the public’s perception of the court and does not want it to be seen as an institution easily swayed by changing political winds”. But if Mr Roberts is to be the fifth vote to save agency fees, he masked that well. Allocations to public education always compete with other budget areas such as “public housing [and] welfare benefits”, he said. “It's all money.”

What would happen if agency fees disappear? The unions, along with a host of agency-shop states, including California, argue that their membership rolls would thin and finances would wither. The lawyer for California, Edward Dumont, warned that “if they are given a choice”, many teachers would prefer to have unions bargain for higher wages “for free, rather than to pay for it”. Forcing a public-sector union to be an exclusive bargaining unit without giving it the ability to collect fees from non-members poses “a classic collective action problem”, he said. It’s “important...from the employer's point of view, that that representative be adequately funded and stably funded, so that they can work with us.”

Justice Antonin Scalia, usually no friend of liberal causes, made this point about free-riding in a 1991 opinion. But at the hearing on January 11th, he seemed sanguine about the effect of the fees drying up. “I can agree that dealing with just one union makes everybody's life easier”, Justice Scalia said to Mr Dumont. But “[w]hy do you think that the union would not survive without these fees?” Other unions with similar constraints, he observed, “seem to survive; indeed, they prosper”.