About a month ago, the Supreme Court closed out its term in a blaze of nonpartisan glory. Or nonpartisan obloquy, depending on one’s reaction to the court’s legalization of same-sex marriage and its upholding of Obamacare — but nonpartisan either way. A court with a Republican-appointed majority upheld a Democratic president’s health insurance program and a marital policy that most Republican officeholders felt obliged to oppose (even if most Republican political consultants felt relieved to see gay marriage rendered a fait accompli).
But that was then. In the term that will begin this fall, the court has a splendid opportunity to deliver the most partisan decision it has rendered since Bush v. Gore. When the court rules in Friedrichs v. California Teachers Association , which will be argued in the coming months, the Republican-appointed justices will be able, if they so choose, to create a long-term advantage for their party over the Democrats.
Friedrichs is a case brought by a California teacher who objects to paying dues to the union that has bargained the contract that secures her pay and benefits. The union does not collect any money from her to support its political activities, but, by virtue of the court’s 1977 Abood decision, and hundreds of later decisions based on Abood, she is obliged to pay that portion of her dues that goes to bargaining and administering her contract. That obligation, the court ruled in Abood, is essential if public employees are to have an effective right to collective bargaining. If employees can benefit from union representation without funding the union, the court reasoned, the union could be weakened to the point that it couldn’t represent those employees adequately, if, indeed, at all.
Last year, however, in an opinion breathtaking for its chutzpah, Justice Samuel Alito invited union opponents to bring a challenge to Abood before the court. The case in which he ruled — Harris v. Quinn — concerned whether home-care workers, employed jointly by individuals and the state of Illinois and covered by a union contract, were required to pay dues. While the majority confined its ruling to home-care workers, Alito devoted most of his opinion to arguing that no public employee covered by a collective bargaining agreement should be required to pay dues. As Justice Elena Kagan noted in her response, Alito was arguing a case that wasn’t even before the court, soliciting a challenge to the very idea of public-sector collective bargaining.
On the final day of its term last month, the court accepted that challenge by announcing it would hear Friedrichs. Friedrichs’s proponents argue that the case is about the free-speech rights of public employees who don’t want to support the union that represents them. The reason the union represents them at all, of course, is that a majority of the employees in their unit have voted to give the union that power — and they can vote to strip it of that power if they so choose. Absent effective union representation — a real possibility should the court reverse Abood and the union’s resources diminish — they lose the one kind of speech that most matters to workers: the collective voice that workers gain through unions and that enables them to bargain with their managers.
As private-sector unions have dwindled in the face of four decades of employer opposition, public-sector unions have become the nation’s largest and most powerful labor organizations, its leading advocates for a fairer economy and, come election time, a significant source of the legwork for get-out-the-vote operations for progressive Democratic candidates. Their concerns extend well beyond their members’ immediate welfare. The Service Employees International Union, for instance, is the main funder and organizer of campaigns to raise the minimum wage for low-paid (almost entirely non-union) workers and has played a central role in the battle to legalize undocumented immigrants. All the large public-sector unions have devoted significant resources to opposing Republican-backed state laws that suppress minority voter turnout. For decades, they’ve financed and mounted voter registration and turnout campaigns among their own members and in minority communities.
Before it took on its nonpartisan patina at the end of its last term, the court, led by Chief Justice John G. Roberts Jr., had already tilted the political playing field toward Republicans by striking down key portions of the Voting Rights Act and extending a string of rulings that are drowning our elections in billionaire dollars, thereby creating policies (for instance, our tax code) that only a billionaire could love. Ruling for the plaintiff in Friedrichs would whack not only labor — for all its weaknesses, the nation’s only real anti-plutocratic force — but the Democrats as well. Bush v. Gore decided a single election. Should the GOP-appointed justices go partisan again, Friedrichs could decide elections for years to come.