Public employee unions near-death in Supreme Court

April 2, 2016
Peter Scheer

Peter Scheer


Public employee unions, the most powerful special interest group in California and most other states, came within a heartbeat of losing that power, as a legal challenge by dissident public school teachers came to a close in the U.S. Supreme Court this week.

I use the word “heartbeat” somewhat literally, because it is all but certain that Justice Antonin Scalia would have cast his vote to create a 5-4 majority in favor of the teachers’ First Amendment argument in Friedrichs v. California Teachers Assn. As it was, the remaining eight justices split 4-4, with the consequence that the court of appeals’ pro-union decision was left standing. (Legally speaking, it’s as though there had never been an appeal to the Supreme Court).

The issue before the Supreme Court was whether the compulsory funding mechanism common to all government unions–those representing teachers, police, firefighters, prosecutors, and more, both at the state and local levels—was unconstitutional.

How so? Because, claimed the teachers, requiring workers to pay dues to their union compels  workers to back the union’s political stands, in violation of the First Amendment’s free speech clause. (Interestingly, this is essentially the same “coerced speech” argument that Apple made to oppose a court order directing that it write code to weaken security of the iPhone).

The dissident teachers urged the Court to overturn a 1977 precedent and rule that, because all activities of government unions—even salary and benefit negotiations—raise controversial political issues, the First Amendment requires that ALL dues payments must be optional. Not just a portion of dues payments (for political contributions, lobbying and such, for which workers have long been able to claim refunds), but ALL dues payments.

Now you can see why the Friedrichs case was a near-death experience for public sector unions. However, union leaders should not mistake their temporary good fortune for vindication. Public opinion has turned strongly against them, as citizens realize that escalating pension and healthcare obligations—negotiated in secrecy by union-backed elected officials—are unsustainable. There are limits to voters’ willingness and ability to pay for employee benefits that they themselves don’t have (and wish they did). Those limits have been reached.

The non-decision in the Friedrichs case is a reprieve for government unions, not a salvation. The First Amendment challenge to compulsory dues will resurface. New suits could be brought under the free speech clauses of state constitutions. And except in the states covered by the 9th Circuit Court of Appeals, the federal courts remain open to renewal of First Amendment claims modeled on the Friedrichs litigation.

There’s no predicting how the Supreme Court, with a full complement of nine justices, would decide free speech arguments against compulsory union dues. Merrick Garland, President Obama’s nominee to the Court, is a moderate democrat, strong on First Amendment rights, who, if appointed, could go either way. Because First Amendment issues often cut across partisan lines, a more conservative nominee cannot be counted on to vote against the unions; likewise, a more liberal nominee could produce an unpleasant surprise for democrats.

Public employee unions are at an inflection point. They can choose business as usual, trying to maintain political dominance through campaign contributions and secrecy. Alternatively, they can embark on a strategy of winning back rank-and-file and public support, and doing so through persuasion in free and open debate. This strategy worked pretty well for these unions in the 1950s and 60s, when their agenda was more in sync with the desires of voters.

Over the long term, it is the unions’ only viable strategy.

Peter Scheer, a lawyer and journalist, is executive director of First Amendment Coalition.

Inline Feedbacks
View all comments

Public sector unions are a scam, unlike private sector unions they don’t have to deal with the management of a company that won’t (or shouldn’t) give in to anything that will hurt the company, Public sector unions deal with elected politicians who receive campaign contributions from said unions. The politicians also know that they will be long gone and not held responsible for over promising benefits. Leading to, Ta-daa, our sad state of affairs today. and this is from a liberal newspaper!

This issue deduces to the simple fact that the dissident union members don’t want to pay dues as prescribed as being a part of a union, but still want the high wages and great benefits that the union has fought for and given them over the years. What’s wrong with this picture? The situation arises where a union member that pays their dues, and where their coworker doesn’t, but still expects all of the benefits the union offers! Can you spell A-N-I-M-O-S-I-T-Y and H-Y-P-O-C-R-I-T-E? Sure you can.

The irony is the fact that supporting the union’s choices politically, insures the fact that the union member will continue to reap the pay and benefit awards that they’ve become accustomed too.

If this issue is so upsetting to these union due dissidents, then they should leave their union job and find another, where this time, get a non-union job and don’t cry over the fact of not having the protections they once had.

Whats that adage relative to this story? Oh yeah, “they want their cake and eat it too.”

They should not be forced to eat the cake.


Wrong! They knew the conditions before they took their union job. You don’t try and close the barn doors subsequent to the horse getting out.

“I want the great pay and benefits that I knew this union job would provide, but I don’t want to help pay for them, so I’ll let the other union employees do it for me.”

Get it? Yeah, you do.

Unions may be responsible for what really happened to Scalia.


A stronger rumor that I heard was that Scalia was not voting correctly in respect to Jesus’ wants within the bible regarding the poor. Therefore, Jesus introduced Scalia to the depths of the sulfur lakes of hell.

Tell us more

Teachers Unions are historically stupid and typically support bad policies.

Look at illegal immigration.

Teachers Unions supported illegal immigrants because it meant more students in the schools.

Never mind the fact that illegal aliens are a huge drain on the schools and cause specialized programs for Hispanic illegal aliens like English Learner classes.

All of this does not mean that Teachers Unions can not be remolded as a public sector union to serve the public interest and improve education.

The arguments against teachers and secretaries having basic pensions are libertarian nonsense.

The USA will not be sunk by teachers getting a $50K/year pension.

The USA WILL be sunk by illegal aliens from the third world who do not have American values.

Kaiser Bill,

In respect to your immigration synopsis, when will the Republican controlled House and Senate actually bring forth a bill and pass it that addresses this problem? They’ve had four years in control, and all we hear are “crickets” in the background towards immigration reform.

Most Republicans are for illegal immigration because it is a source of cheap labor.

Most Democrats see illegal immigrants as future voters.

The solution to the illegal immigration problem is a strong border, enforcement of immigration laws, and a Deportation Force to remove illegal aliens.

Government employees being affiliated with Organized Crime (a.k.a., the Public Sector Unions) is a serious conflict of interest.

The Hatch Act was enacted for good reason.

We need to break these unions they are out of touch with reality!


Only because you’re not a member of one reaping the rewards.

Never have been, even turned down jobs in my younger years so I wouldn’t have to belong to a union.


Good for you! It’s only logical to turn down higher paying employment with job security and better benefits so you can actually live on your wage income comfortably.

Just a couple of facts the Unions have given you, even if you’re not in one, is the Weekend, Fair Wages and Relative Income Equality, they ended Child Labor, and started Employer-Based Health Coverage, and the Family And Medical Leave Act. Hell, there’re many other things the Unions have given you, but you get the picture with the few mentioned herein.

Mr. Scheer, your article was concise, accurate and well expressed. I concur.

Unusually, I find myself in complete agreement with Mr. Tatro.

Time is ticking for the organized crime syndicate otherwise known as the SEIU. Pennies on the dollar of forced dues are returned in the way of negotiated COLA’s and pay rate increases. Legitimate labor issues are either protected under labor laws or fought for by a hired labor attorney who is committed to your needs. We dont need your half assed “we dont have the resources to fight for you” lies. Keep your sniveling do nothing supporters and go the hell away SEIU. Understand those of us who dont need to be taken by the hand every minute of each day to get a job done have nothing but contempt for you. We dont support you, Obama, or your chicken shit political interests.

Take away the Unions mandatory stealing of workers money and they Die….

What does it tell you that the only way they can survive is to forcibly take your money!

But relax…their death is assured…as the money Poniz scheme known as Public Sector Pension plans explodes…so goes the Public Sector Unions.