Friedrichs and Scalia

With Scalia dead, what does this mean for public sector unionism? A couple of takes from people smarter than I. First, Charlotte Garden:

If Abood stands—either because of a 4-4 decision or because a new Justice provides the fifth vote to affirm it—it will not spell the end of challenges to public-sector unions. Cases with the potential to chip away at organized labor will continue to reach the courts in significant numbers no matter what, and they will proliferate if the next justice is a Republican appointee. More important, states may still adopt “right-to-work” laws banning mandatory union fees, as the West Virginia legislature voted to do last week, or to eliminate collective bargaining for public employees altogether. Thus, a favorable decision in Friedrichs will not eliminate contentious fights over union rights—it will just move them to state governments, which increasingly lean Republican.

At the same time, unions may be left in a stronger position for having been through the Friedrichs crucible, assuming they emerge victorious. First, public unions responded to Friedrichs by redoubling their efforts to connect with represented workers, successfully convincing tens of thousands of them to become members. Those gains, and the infrastructure that facilitated them, will presumably remain in place. Second, blue-state lawmakers had already begun rethinking union rights in a post-Friedrichs world. For example, a Hawaii bill would partially fund collective bargaining through the state, while also allowing unions to experiment with charging non-members à la carte for their services. And, California responded to a 2014 Supreme Court decision eliminating fair-share fees for home health-care workers by giving unions the right to make a presentation at new employees’ mandatory orientation. Similar proposals may yet take hold, even if the Friedrichs threat is eliminated. Especially given that robust union representation is associated with higher pay for public employees, then, one indirect consequence of Friedrichs may turn out to be greater disparities in public-sector wages and working conditions among the states.

Second, Moshe Marvit:

Accordingly, labor was scrambling to figure out how best to run a union in a post-Friedrichs world. Meanwhile, conservatives already had a plan in the works to expand what they saw as a certain win.

Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost at the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand the Harris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn’t opt to be a member.

Former Supreme Court Justice David Souter wrote the decision for the First Circuit in D’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.

In addition, other cases, such as Bain v. CTA, that attacked the membership rights of unions but had been thrown out by lower courts, were likely to reappear.

In short, everything depends on what happens with this vacancy. I suppose it has to be filled someday, but then who knows. In the short term, this is an event that saves public sector unionism for at least a year and possibly for decades. It certainly puts the organized conservative legal attack on unionism generally back a few years. Both sides know what the long-term implications are for this seat, whether for unions, immigrants, abortion, the environment, etc.