Abood abides: a 4-4 Supreme Court split leaves in place earlier precedent providing that public employees can be required to pay union “agency fees” spent on activities of which they may not approve. Cato reactions: Trevor Burrus (“The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death”), Jason Bedrick (“Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they’re taking.”). Bonus: Charles C.W. Cooke (NEA president’s “Orwellian” words on case). Earlier here.
My colleague Ilya Shapiro thought things went well for the plaintiffs’ side in yesterday’s oral argument in the much-watched case over the First Amendment and teachers’ union dues, Friedrichs v. California Teachers Association. Others generally agree. Commentary before the argument from Jason Bedrick and Trevor Burrus, and afterward from Lyle Denniston (and more SCOTUSBlog).
On Jan. 11, the Supreme Court hears what may well be the most important case of the term. In Friedrichs v. California Teachers Association, 10 teachers have challenged a state requirement that they support political causes with which they disagree and that hurt their students.
At issue is a kind of law that exists in 25 states which forces public-sector workers either to join a union or pay an amount that covers the cost of the union’s collective bargaining. For California teachers, that means annual dues of about $1,000 or “agency fees” of about two-thirds that amount.
— Ilya Shapiro and Jason Bedrick, Orange County Register. More: Shapiro and Jayme Weber, The Federalist; Richard Epstein, Robert Alt first, second (empirical evidence that unions can do well even when nonmembers not obliged to pay agency fees), third (stare decisis) posts, George Will. Earlier on Friedrichs and its predecessor cases Harris v. Quinn and Knox v. SEIU. A contrary view: New York Times editorial.
A 1977 Supreme Court decision, Abood v. Detroit Board of Education, upheld the constitutionality of forcing public employees to fund (through union dues) advocacy they might not like. More recently the Court has questioned the reasoning of Abood in Knox v. SEIU (2012) and Harris v. Quinn (2014), although the trend stalled in last year’s 4-4 split in Friedrichs v. California Teachers Association. Now the Court could revisit the issue by agreeing to review a Seventh Circuit case from Illinois, Janus v. AFSCME [Ilya Shapiro and Frank Garrison, Cato]
- “This One Simple Trick — Used by Colin Kaepernick — Will Make It Harder To Fire You” [Coyote] And on the topic of retaliation, Obama administration appointeees have been revising doctrine in a direction sharply unfavorable to employers both at the EEOC and at OSHA, the latter of which has legal authority to enforce the retaliation provisions of many laws like Dodd-Frank unrelated to conventional occupational hazard [Jon Hyman on EEOC and OSHA]
- In $5 million award, Texas jury finds SEIU playbook on janitors’ campaign encouraged lawbreaking disruption of target business and its clients [Jon Cassidy and Charles Blain, WSJ]
- Obama administration’s new blacklisting rule on labor violations gives unions a whip hand in negotiations with federal contractors, as if by design [Marc Freedman, U.S. Chamber]
- Finally, a state appellate court pokes a hole in the bizarre California Rule under which public employers may not reduce future pension benefits even when based on work not yet performed [Dan Walters/Sacramento Bee, Scott Shackford, Reason]
- Hearing over expanding employment-law damages in Colorado highlights shift in EEO law toward goal of money extraction [Merrily Archer]
- Post-Friedrichs, the future of mandatory union dues in public employment [Federalist Society podcast with Scott Kronland and William Messenger] “Big Labor Tries To Eliminate Right-To-Work By Lawsuit” [George Leef]
- “Cato Batted .500 at the Supreme Court, Still Besting the Government” [Ilya Shapiro] “Obama Has Lost In The Supreme Court More Than Any Modern President” [same, The Federalist]
- Scalia’s absence left a void this year, but (Friedrichs aside) not mostly on case outcomes [Shapiro, Forbes] Scalia’s legacy on criminal defense [Kevin Ring, Cato Daily Podcast]
- “Supreme Court Session Promised Much, Delivered Little To Business” [Daniel Fisher]
- Relevant to Sotomayor and Kagan dissents in the exclusionary rule case, Utah v. Strieff: outstanding warrants are neither infrequent not randomly distributed [Alex Tabarrok, Orin Kerr, Tim Lynch/Cato, Scott Greenfield]
- Can Congress pass a statute whose effect is to dictate a result in one pending case? Should it matter whether the plaintiffs are sympathetic terror victims? [Michael Greve, Jonathan Adler, Daniel Fisher first and second on Bank Markavi v. Peterson]
- Government contracting: high court corrects First Circuit’s implausibly pro-plaintiff reading of False Claims Act [Richard Samp, Washington Legal Foundation on Universal Health Services, Inc. v. United States ex rel. Escobar]
- Soon after reports that World Health Organization wants to keep kids from viewing classic films depicting smoking, purported class action lawsuit seeks damages from Hollywood for not instituting such a ratings policy [Courthouse News]
- UK police arrest another man over dumb political tweet, defend our First Amendment to make sure such things don’t happen here in US [Telegraph] “How about we ‘defend European values’ by not arresting people who say stupid things?” [Brendan O’Neill, Spectator]
- The monocle that blinked: New Yorker magazine now often found on wrong side of free speech issues [Jamie Kirchick/Commentary, earlier]
- What does Donald Trump really think about suing the press? Ann Althouse goes line by line through what he told the Washington Post at an editorial board meeting [earlier here, here, etc.]
- High court should step in against law regulating speech regarding ballot measures by small, low-budget groups [John Kramer, Institute for Justice on Justice v. Hosemann] Paul Sherman of Institute for Justice joins Trevor Burrus and Aaron Ross Powell for a discussion of the First Amendment, political and occupational speech [Libertarianism.org]
- Merrick Garland’s record on First Amendment issues [Ronald Collins] State of play in the Supreme Court on First Amendment cases this term [same; published before 4-4 outcome in Friedrichs]
This year’s eight-member court may reach different outcomes than had formerly been expected in Friedrichs v. California Teachers Association, the public employee union dues case; the Obamacare religious exemption cases including Little Sisters of the Poor v. Burwell; and Fisher v. Texas, the affirmative action case, among others. Also diminished: the chance that the Court will overturn its doctrine of “Auer deference” to agencies’ interpretations of their own regulations, a doctrine laid out by Scalia himself which he later came to reconsider [Adam Gustafson, Washington Examiner] Plus the trio of class action cases, the challenge to the EPA’s coal-throttling Clean Power Plan, and much more [Daniel Fisher, Forbes] (& welcome Wall Street Journal Law Blog readers)
- NYPD retiree “shared his happiness at scoring the disability pension, as well as his achievements running marathons” [New York Daily News]
- Scott Greenfield on public sector unionism and Friedrichs v. California Teachers Association [Simple Justice, earlier] Pending Illinois case raises issues parallel to Friedrichs [Cato podcast with lead plaintiff Mark Janus and attorney Jacob Huebert]
- San Diego voters tried to address public employee pension crisis, now state panel says doing things by ballot initiative violates obligation to bargain with unions [Scott Shackford, Reason]
- “Staten Island Ferry deckhand who has already pocketed $600K in job related injuries sues city for $45M” [New York Daily News]
- Detroit “firefighters were paid for 32-hour days….Numerous top-level fire officials signed off on the overtime.” [Motor City Muckraker]
- “Without public worker unions, who would lobby against making it a crime to strike a pedestrian with right of way?” [Josh Barro on NYC controversy]
- “Not Even a Criminal Referral to the Dept. of Justice Can Get You Fired From the VA” [Amanda Winkler, Reason]
The Court begins its new term each year on the first Monday in October:
- Court agrees to tackle RICO extraterritoriality [Alison Frankel/Reuters and earlier background, Washington Legal Foundation; RJR Nabisco v. European Community]
- New term shaping up as even bigger for class action law than expected [Jess Bravin, W$J, Alison Frankel in June] In addition to Tyson Foods v. Bouaphakeo (“trial by formula“) and Spokeo, Inc. v. Robins [uninjured plaintiff standing: Kevin LaCroix, more], cases include DirecTV v. Imburgia [can California court refuse to enforce arbitration clause waiving class actions?; Ronald Mann, WLF]; Campbell-Ewald v. Gomez [is class action mooted when defendant proffers full recoverable amount to named plaintiff? Ronald Mann]; and now, just granted, MHN Government Services, Inc. v. Zaborowski (“Whether California’s arbitration-only severability rule is preempted by the Federal Arbitration Act”). DirecTV is slated for oral argument Tues., Oct. 6, and Campbell-Ewald Wed., Oct. 14;
- Rating John Roberts as Chief Justice: a lot to like if you get past the overdone deference to political branches [Roger Pilon, Cato; a contrary view, Evan Bernick] “The Fatal Conceit of Chief Justice Roberts’s ‘Long Game'” [Josh Blackman]
- Why the Little Sisters of the Poor have a better religious liberty case than Kim Davis [Noah Feldman, Cato amicus and Josh Blackman podcast]
- Did 2012 Congressional enactment on frozen Iran assets and terrorism claimants unconstitutionally direct courts how to decide pending litigation? Court grants cert [Bank Markazi v. Peterson; Lyle Denniston]
- Symposium on teacher-dues First Amendment case Friedrichs v. California Teachers Association with Deborah LaFetra, David Rifkin/Andrew Grossman, and others [SCOTUSblog] “If unions lose agency fees, what next?” [Joanne Jacobs]
- A regulatory taking? PLF seeks certiorari on California Supreme Court decision upholding San Jose “inclusionary zoning” rules [Pacific Legal Foundation, more; Scott Beyer]
- Plus: “Supreme Court Justices Get More Liberal As They Get Older” [Oliver Roeder/Five Thirty-Eight, with charts]