Protesters rally outside the Supreme Court Monday as the court heard arguments in Friedrichs v. California Teachers Association, a case that could have severe consequences for unions if the justices decide in favor of the plaintiffs. | AP Photo SCOTUS signals support for anti-union plaintiffs

The Supreme Court appeared ready Monday to bar public-sector unions from collecting "fair-share" fees from non-members, a move that could deal a political blow to Democrats by reducing union membership drastically and draining union coffers.

At oral arguments in a case brought by California public school teachers who object to the requirement, the court's conservative wing appeared deeply skeptical of a 1977 high court decision upholding the constitutionality of such fees.


Justices Samuel Alito and Anthony Kennedy appeared the most hostile to the unions' position, but from the tenor of their remarks it seemed unlikely Chief Justice John Roberts or Justice Antonin Scalia would support the unions' side. Conservative Justice Clarence Thomas was silent at the arguments, as is his wont, but is considered a near-certain vote for the plaintiffs.

Under current law, public employees covered by union contracts may opt out of paying any fees toward the political activity of their union. But states may pass laws that require those dissenting members to pay a fee to cover their portion of collective bargaining costs. Such provisions, on the books in about two dozen states, are being challenged in the case by Rebecca Friedrichs and eight other California teachers.

The fair-share or "agency" fee is widely seen as a compromise between the First Amendment rights of public employees who may not wish to join a union and the material interest of the unions, which are required by law to bargain on behalf of all members of a given unit, regardless of membership status.

The most plausible conservative swing vote in Friedrichs v. California Teachers Association, somewhat surprisingly, was Scalia, who has supported fair-share fees in past decisions. But at Monday's oral arguments he seemed sympathetic to the plaintiffs, joining with other conservatives who said that they saw no clear way to separate bargaining issues from political issues when public employees' salaries and working conditions were at stake.

"The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition," Scalia said.

Scalia said he was sympathetic to "the need of a state to have an efficient system for dealing with its employees," but he also appeared skeptical that prohibiting fair-share fees would devastate public-sector unions.

"Why do you think the union would not survive without these fees charged to non-members?” he asked California Solicitor General Edward DuMont. "Federal agency unions do not charge agency fees to non-members, and they seem to survive; indeed, they prosper."

"The state would prefer not to take that risk," DuMont replied.

Roberts seemed to agree with Scalia that ending mandatory agency fees might not be terribly disruptive, because many workers could choose to keep paying dues voluntarily. "If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free-rider concern that's been raised is really insignificant," the chief justice said.

Whatever the impact, Kennedy was clearly troubled by the idea of forcing dissenting teachers to pay for what he called "public relations programs, newspaper articles and media programs" used to advocate policies like "protecting underperforming teachers."

"The union is basically making these teachers compelled riders for issues on which they strongly disagree," Kennedy added.

The court's liberal appointees expressed worry about overturning four decades of precedent in public-sector labor law and dispensing with the court's general practice of stare decisis, or respect for well-established case law.

Justice Stephen Breyer said he was hesitant to rule again the unions because doing so could harm the court’s image as an institution of legal stability and continuity.

"You start overruling things — what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?" Breyer asked

Justice Elena Kagan told attorney Michael Carvin, who argued for the teachers objecting to the fees, that he carried a "heavy burden" in trying to overturn a decision that formed the basis for contracts involving "tens of thousands, maybe as high as 10 million employees."

"These contracts will operate precisely the same the day after [the 1977] Abood decision is overruled as they would before," Carvin insisted.

The frequent Supreme Court litigator painted the current system as an infringement of his clients' First Amendment rights. "The government, for example, can subsidize Planned Parenthood, but it cannot require a citizen to fund Planned Parenthood," Carvin said. "Money is not money when it's supporting speech."

However, Breyer said he didn’t consider the question of employees’ representation in collective bargaining to be a core free speech issue. “That’s pretty far removed from the heart of the First Amendment,” he said.

Both Kagan and Breyer warned that overturning the government’s ability to require payment of union fees would have ramifications in other areas, undermining the legality of mandatory student activities fees at state colleges and mandatory bar association fees for lawyers.

“That’s quite a big deal,” Breyer said.

The lawyer for the California Teachers Association, David Frederick, said making all employees invest financially in union negotiations actually helps public employers by convincing workers they have a stake in such contracts.

"It enables all of the workers to know they are making a shared sacrifice for the purpose of working together to establish a coherent position with their employer," said Frederick.

Scalia said he was baffled by the argument that bolstering the solidarity of the employees would aid their employer. "You say that, but it doesn't mean anything to me," the conservative justice said.

"It sounds to me like your argument cuts exactly the opposite way," Roberts added.

In two prior decisions, 2012’s Knox v. SEIU and 2014’s Harris v. Quinn, the court expressed skepticism about the Abood precedent but stopped just short of overruling it. “The Abood Court’s analysis is questionable on several grounds,” the Harris decision said.

Should the Supreme Court rule for the plaintiffs in the latest case, the result will hit the labor movement hard. That's because members in non-right-to-work states will find themselves newly able to receive the benefits of a union contract without having to pay for them. Public-sector unions are the only part of the labor movement that's thrived in recent decades: Nearly 36 percent of public-sector workers are unionized, compared to less than 7 percent of private-sector workers.

A decision for the Friedrichs plaintiffs would not affect private-sector unions because most of these are governed separately under the National Labor Relations Act, from which public-sector workers are excluded. Nor would it necessarily lead to a later decision applying the same reasoning to private unions, because the link to First Amendment rights might be less clear in a private-sector context.

It would nonetheless be a powerful blow against the Democratic Party, which has long relied on union funding from public-sector unions like the 3 million member National Education Association, the 1.6 million member American Federation of Teachers and the similar-sized American Federation of State, County, and Municipal Employees — all of which have endorsed Democratic front-runner Hillary Clinton.

Friedrichs has said she disagrees with the political motives of her union even when it comes to collective bargaining. “Increasingly I saw that many of the things the union bargained for actually made my job as a teacher harder,” Friedrichs told reporters Thursday. “Because of tenure laws, it is almost impossible to fire incompetent, and sometimes even abusive, teachers. And because of seniority-based layoff policies — last-in, first-out — which the union has negotiated, newer teachers are the first to go regardless of how good they are.”

Some union members fear that a financial blow arising from a decision against the unions could diminish public services. “The fear is that families are going to suffer,” said SEIU Local 509 member Ethel Everett of Springfield, Mass., a social worker at the Massachusetts Department of Children and Families. “There is a fear for us as an agency that deals with kids with abuse and neglect.”

One such fear, Everett said, is that diminished union power would affect her local's ability to bargain over staffing levels, reducing the availability of social workers to at-risk children. “It’s larger than the fee,” she told POLITICO. “It’s about the families. It’s about the communities. It’s more about the work that we do. This is our work. This is our life’s work.“