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A landmark Supreme Court decision that's nearly 40 years old is on life support. It declared that state and local governments can require nonunion public employees to pay partial fees for negotiating union contracts that cover them. Conservative activists and union opponents have long hated this. And today, a majority of Supreme Court justices seemed poised to reverse it. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 1977, the court said that while nobody is required to join a union, nonunion members can be required to pay so-called fair share fees to cover the costs of negotiating the contract they benefit from. The caveat is that nonmembers do not have to pay for the union's lobbying and political expenses. On the steps of the Supreme Court today, lead plaintiff Rebecca Friedrichs, a third-grade teacher, explained that in her view, everything the union does is political.
REBECCA FRIEDRICHS: I'm here today with my fellow plaintiffs because our voices have been silenced by forced unionism for decades.
TOTENBERG: But fellow teacher Reagan Duncan countered that nonunion members who don't want to pay for contract negotiations are trying to free ride on the union's back.
REAGAN DUNCAN: You don't expect to get something for nothing. It's the same thing. Asking for - getting the services of negotiation and fair representation for free.
TOTENBERG: Inside the courtroom, it was quickly apparent that the court's for more-liberal members were fighting an uphill battle. Until recently, the unions had some hope that conservative Justice Antonin Scalia might side with them. In the past, he seemed to agree with the view that the unions need to collect service fees to prevent free riders. But today, he was consistently hostile to that position. The problem, he opined, is that everything that is bargained for with the government is within the political sphere.
And Justice Anthony Kennedy, the justice most likely to be open to persuasion on many other issues, is something of a purist on the First Amendment. He's the author of the court's 2010 decision striking down many key campaign spending and contribution limits, and today, he suggested that service fees turn nonunion members not into free riders but compelled riders in support of contract provisions that they disagree with.
As the argument began, Kennedy did wonder why, if public employees could be exempt from paying union service fees, the same would not be true for private-sector employees who work in a union shop. The challenger's lawyer, Michael Carvin, replied that the First Amendment doesn't apply to the private sector. It just applies to government restrictions on speech. But, replied Kennedy, if the state authorizes a union shop, wouldn't that be the same kind of coerced membership or coerced speech that you're objecting to? Carvin said he didn't think so.
Justice Kagan interjected at this point. The court's public employee cases, she maintained, were aimed at ensuring that when the government acts as an employer, it's in the same position as a private employer except that it's not permitted to use its leverage to prevent union members from speaking out. Kagan then turned to a larger question - whether the court's 1977 ruling had proved either so unworkable or basically untenable that it should be reversed. You come here with a heavy burden, she said. There are tens of thousands of government contracts with these service fee provisions for nonunion members, and those contracts affect as many as 10 million employees. So what special justifications are you offering here? Carvin replied that the court's 1977 ruling was wrong, out of step with other First Amendment cases and thus should be reversed.
Justice Breyer, incredulous - and you think all of our decisions are correct? Maybe Marbury versus Madison was wrong, Breyer said, referring to one of the most important landmarks of American law. There are people who think it was. This labor decision, he observed, was a compromise 40 years ago, but it was 40 years ago. And if we overrule it, Breyer said, there are at least three other decisions that sprang from it that would have to be overruled. Some things are basic enough that they weren't overruling, like the court's 1896 decision upholding racial segregation. Most are not, he said. You start overruling things, what happens to the country's thinking of us as a kind of stability in a world that's tough because it changes a lot?
Next up to the lectern was California's solicitor general, Edward Dumont, siding with the union in this case. He noted that 90 percent of California's 325,000 teachers are union members. Chief Justice Roberts - if the employees want this so overwhelmingly, then isn't the concern about free riders insignificant? No, replied Dumont, because suddenly, what you had to pay for before is free. Chief Justice Roberts - what's your best example of something the union negotiates that's not political? Mileage reimbursement rates and safety measures, replied California's lawyer. But that's all money, replied Roberts. How much money is going to have to be paid to the teachers? Answered Dumont - what's fundamental is that we need to be able to run our workplaces, and the most efficient way of doing that is by negotiating with a single democratically elected union that has the power to bargain over matters that, of necessity, do involve some public policy issues. Moments later, Justice Kennedy replied caustically, a state is always more efficient if it can suppress speech. Nina Totenberg, NPR News, Washington.
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