The 4-4 decision in the public sector union case, Freidrichs v. California Teachers, was a significant failing of the Supreme Court and Chief Justice Roberts.
Plurality votes are not in the interest of the public and weaken the court as an institution. The Supreme Court is appointed to announce decisions that govern the land and just as importantly, provide their rationale. Now, in a case that affects a significant chunk of the workforce, the High Court shirked that responsibility by mucking its cards face down. The Court merely proffered a few terse words stating that there is an equally divided panel, and the lower court decision is upheld. Such results, which have occurred twice already, make the institution less than supreme.
Chief Justice Roberts holds a special role in guarding the integrity of the Court, and failed in his handling of this case to avoid the tie. Shortly before Justice Scalia died, Roberts gave a speech at New England Law School where he remarked that the justices are not to act as Republicans or Democrats. He showed that he has little interest in living up to this ideal by voting against 40 years of precedent, even when he knew there were not enough votes for an override.
Roberts is both the spokesman for the Court and the administrator of work. Significantly, the chief assigns who writes an opinion when he aligns with the majority. Decisions are to be equally divided numerically, but the chief has the power of assigning far-reaching decisions at his discretion. Warren Burger infamously would use the following stratagem — he would let the other justices vote on a given case and then, more often than his predecessors, join the majority view. Burger would do this in cases he disagreed with to reserve the right to assign the author and dilute the impact of decisions he disagreed with. Roberts’ should have followed this lesson in this case as voting with the union position would have permitted him to actually embrace the conservative values of respect for the states’ rights and principles of federalism.
Since the decision in Abood v. Detroit Board of Education in 1977, states have been able to make the exact type of labor choice states should possess. California and New York, for example, have laws that permit workers to form a public sector union for each category of workers, such as firemen, police, and teachers. This serves the state’s interests of making negotiations manageable and prevents inter-union rivalries and avoids trying to enforce multiple agreements. In such systems, the law imposes on the union the legal duty to represent non-members. States have every right to conclude that strong public unions create the rising tide that lifts all boats as to the average government worker’s wages, hours, health and pension benefits. The agency fee has been justified given that non-union members receive value, in the form of a bargaining representative, for the fees the state mandates.
Just under half the states have opted to impose the agency fee. The other half have chosen to do the opposite. Many public unions have also, under both Democratic and Republican leadership, been subjected to pension limitations and tier restructuring over the last decade. Ultimately, the nation has divided itself in line with the prevailing views of each locality on public sector labor issues. This is how it should be under our representative system of government. Roberts should have, at the very least, acknowledged this trend and worded the Freidrichs opinion in such a way that highlights there is momentum to voluntarily opt out of such arrangements rather that apply a stretched view of the First Amendment that respected conservative jurists have rejected in the past.
Abood was decided in a manner where reasonable conservative minds differed as to the correct result. Potter Stewart (appointed by Eisenhower) and Lewis Powell (appointed by Nixon) were moderate Republicans who came to different conclusions on the issue of whether imposing such a fee violates the freedom of speech and association rights of the aggrieved non-union workers. Justice Stewart, writing for the majority, made the practical finding that just as union members often disagree with their own union’s positions, the same dynamic plays out with the non-union worker. However, all are bound because of a local legislative determination that the union acts for the benefit of the whole. When the state acts as employer, the Supreme Court has historically allowed the state to put its union and non-union workers on equal footing in this context given the simple recognition that there will always be a dissenter among a group. Abood also permits the aggrieved worker to recover any funds the union uses for political expenses. Awarding the dissenter the right to freeload off the union’s bargaining efforts is something that Justice Scalia may still not have been apt to do.