When the Supreme Court heard oral arguments for Friedrichs v. California Teachers Association (CTA) on Monday, two distinct groups formed outside the courthouse. The pro-union crowd was large and multiracial and held up bright handmade signs; there were many black people, Latinos and older folks with canes, all of whom stated that allowing public sector unions to opt out of union dues payments constituted an attack on unions in general.
The rally for Rebecca Friedrichs and her supporters was much smaller, whiter and more polished and featured one of the right’s heaviest hitters, anti-tax crusader Grover Norquist. His presence wasn’t exactly a surprise: Their side was gunning for the court to rule that public sector workers should be able to opt out of paying fair-share dues to the unions representing them.
Friedrichs and her crew believe that requiring employees to pay these fees is a violation of their free speech. If the plaintiffs have their way — which is very likely, given the five-to-four conservative tilt of the court — the court could impose a right-to-work regime on all public sector unions. That means that workers could opt out and not have to pay agency shop fees to a union that would nonetheless continue to represent them.
Trade unionists understandably see this as a freeloader problem and predict a big financial hit that would make it harder for unions to fight government employers during contract negotiations and defend members during disciplinary actions. Such a ruling would embolden government officials to lower wages, reduce benefits and privatize services. (Unions are currently the largest organized force combating that trend.) In addition to hurting a key ally of the Democratic Party, it would muffle some of the strongest voices advocating for smaller class sizes in public schools and for more emergency response services for all Americans, because organized labor would be much busier organizing workers to become members and pay dues.
There are a few reasons for unionists to cross their fingers and look to glimmers of hope. Sophia Lee, a legal historian at the University of Pennsylvania, said that in Abood v. Detroit Board of Education, the precedent-setting case in 1977 that mandated agency-shop fees, Richard Nixon appointee Justice William Rehnquist sided with the majority because the proper conservative judicial position was for the court to restrain from governing affairs of employers and employees. Justice Antonin Scalia, Lee contends, is more in line with that doctrine than his right-wing bench-fellows. She also says the right has so far failed to bring fresh arguments to the debate. “I found them shockingly uncreative,” she remarked on the briefs filed on the plaintiff’s behalf, noting that the onus is on the plaintiff to bring new information to light.
The odds for unions, though, are still bleak overall. Even the court’s liberal wing has sided against unions and workers’ rights in key rulings. All nine justices sided with Amazon in a case in which workers demanded compensation for the time they went through mandatory security screenings, for example. The court took the first step in overturning Abood in 2014 by mandating a right-to-work regime for some semi-public-sector workers in a subsequent case, Harris v. Quinn. During arguments, Scalia appeared to take the view that collective bargaining is inherently political.
For unions, bracing for the worst doesn’t mean accepting imminent demise. It can also mean changing for the better. A cutoff of guaranteed dues payments could push unions to look hard at their spending, cut out superfluous expenditures and focus on organizing new members and fighting for good contracts. It also means that union organizers would have no choice but to go out into the field and actively engage with rank-and-file workers who don’t want to join the union and answer their needs in order to sway them rather than rest on their laurels and take their dues payments for granted.
The fact of the matter is that right to work is inevitable not because a 5-4 vote against unions is certain but because for too long, organized labor has seen right to work as a mere quirk of places with few unions, such as the South. Now that union-heavy states such as Wisconsin and Michigan have adopted right-to-work rules, California and New York no longer seem inoculated from the trend.
A ruling against the CTA would obviously weaken the labor movement’s spending power. But at the very least, it could create incentives for unions to clean up their balance sheets and re-evaluate how they can remain relevant in the 21st century. The activists on Friedrichs’ side repeatedly stated that they weren’t out to destroy unions, noting that many thrive in right-to-work states; CTA lawyer David Frederick told reporters that a right-to-work regime would force unions to focus their energy on organizing new members rather than working on day-to-day administrative issues. Perhaps it’s time public sector unionists accept that reality. The sooner unions can accept that new world, the more likely it will be that unions can prove Frederick wrong and show that unions can do both those things.