In the fall of 2015 it looked as if the Supreme Court was on the verge of handing-down a landmark decision. Thirty-eight years before the Supreme Court had ruled, in Abood v. Detroit Board of Education, that it is was lawful for states to compel public employees to make financial contributions to unions—regardless of individual objections. But since then the Supreme Court has called into question the Abood decision. And in Friedrichs v. California Teachers Association, the Court was set to decide whether to overturn Abood—a decision that would have invalidated compulsory public union fees in numerous states.
But with Justice Scalia’s unexpected passing, the Friedrichs case ended anticlimactically in gridlock, with a 4-4 decision. Four justices joined in holding that Abood was wrongly decided and that compulsory union fees violate the First Amendment rights of dissenters, while four justices voted to re-affirm Abood. In practical terms that means that Abood will remain “good law” unless and until the Supreme Court takes the issue up again because it takes five votes to reverse a lower court decision and to overturn past precedent. As they say in baseball, “the tie goes to the runner.” So, at least for the moment, public employee unions are “safe.”
Yet, that may change soon enough if the Supreme Court grants a now pending petition for certiorari out of the Seventh Circuit Federal Court of Appeal, which raises the very same constitutional issue. As in Friedrichs, the question in Janus v. AFSCME is whether compulsory public employee union fees violate the First Amendment. And NFIB Small Business Legal Center has joined with Cato Institute in urging the Court to take this case to decide—once and for all—whether Abood should be overturned.
Should the Court take the case, there is some reason for optimism, given what we know of Justice Gorsuch’s judicial predilections. Gorsuch would be the deciding vote—assuming no further changes to the Court’s composition. And we might speculate that at least four members of the Court are interested in revisiting the issue; however, for now we must wait and see. In the interim, we’ll continue to monitor the issue and will be filing in other cases challenging controversial compelled unionization schemes soon.
For those interested in taking a deeper dive into this issue, check out our previous post breaking-down our arguments in Friedrich’s in greater depth. We explain here why this issue truly matters to the small business community.