If a Supreme Court case yields an outcome that virtually every observer predicted, it’s tempting to dismiss the underlying legal issues as predetermined. But what if the result also confounds the expectations of those same prognosticators from just six weeks prior? Something extraordinary must have taken place, right?
That’s exactly what happened in the closely watched case of Friedrichs v. California Teachers Association, which concluded in a 4-4 split on Tuesday after initially dangling over public sector organizers like the sword of Damocles. When oral arguments were heard in January, the battle lines were familiar: four liberal justices clearly in sympathy with public employee unions, five conservatives set to rule against them. Archconservative Justice Antonin Scalia, who had previously been mentioned as a possible swing vote, gave every impression of siding with his ideological confreres. Headlines from that period were getting a lot of mileage out of words like “bleak” and “brutalized.” And “doomsday.”
And then…well, I guess you know what happened then.
It’s difficult to overstate the effect of Scalia’s death on the court’s deadlock—and, indeed, on the future of organized labor in America. A broad ruling on philosophical lines may have functionally transformed California—and every other state in the country—into a “right-to-work” environment for public sector unions, stripping them of their power to extract money from non-members. The accomplishment would have marked the culmination of a years-long campaign by the Right to weaken bargaining rights, prosecuted both in state legislatures and the courts. Friedrichs was poised to set the most consequential precedent on labor law in generations.
Instead, the evenly split court handed the CTA, and its counterparts around the country, what can only be interpreted as an unambiguous victory. The tie means that the justices defer to the earlier ruling from the Ninth Circuit Court of Appeals, which held for the unions based on the 1977 Abood precedent. The plaintiffs’ quixotic litigation strategy, which depended on lower courts ruling against them in an effort to speed the case’s progress to the Supreme Court, didn’t move quickly enough.
The crux of the case was simple. Although “right-to-work” legislation has been enacted widely over the last four decades, some twenty-three states still allow unions to collect “agency fees” from employees who don’t wish to join. Those fees are similar to the dues paid by members, with an important exception—the funds can’t be used for (typically left-wing) political activities, since that would represent a form of compelled political speech. Instead, they cover the costs of collective bargaining and related labor activities: representing employees in workplace disputes, negotiating with management, etc.
Without agency fees, the present structure of labor-management relations simply couldn’t exist. In 2012, Fordham compiled a mammoth report on comparative labor strength in each state. After reexamining its findings last year in light of the Friedrichs case, we reached a striking (if somewhat intuitive) finding: Of the top twenty most felicitous environments for organized labor, just two (Alabama and North Dakota) were in right-to-work states. Of the bottom ten, only one state (Missouri) didn’t have a right-to-work law on the books.
Note: States in yellow prohibit the collection of agency fees.
*Michigan and Wisconsin passed right-to-work laws in 2013 and 2015, respectively. These rankings were originally calculated in 2012.
Now that they’ve carried the day (or at least been granted a momentary reprieve; the ideological configuration of the court is still very much up in the air, and will likely continue to be until November), it’s still hard to forecast the future for teachers’ unions. Even the foreclosure of this invaluable source of revenue wouldn’t have sounded a total death knell, as Fordham’s own Michael Petrilli and Dara Zeehandelaar wrote last year. And their happy moment in court doesn’t alter the fundamental calculus of their position in 2016; unions in California are already barred from negotiating on teacher tenure and layoffs, and state laws governing those areas are still being debated in the Vergara imbroglio. And conservatives aren’t about to walk away from the fight to roll back their influence, even in the wake of a stunning, eleventh-hour defeat.
But there’s no doubt that organized labor dodged a bullet this week. And the Friedrichs plaintiffs are left wondering what might have been, if only they’d filed their case a few months sooner.
