On January 11, 2016, the U.S. Supreme Court heard oral arguments in Frederichs v. California Teachers Association, a case that will decide whether public-sector employees can be forced to pay union dues as a condition of employment.  The latest battle over the payment of union fees in the public sector arose from claims by some California teachers that state "agency shop" laws violate free speech and association rights under the First Amendment. California law requires teachers working in most of its public schools to financially contribute to the local teachers' union and that union's state and national affiliates to subsidize collective bargaining expenses. California law also requires public school teachers to subsidize expenditures unrelated to collective bargaining unless a teacher affirmatively objects and then renews his or her opposition in writing every year.

The first issue in the case is whether the Supreme Court should overturn a 40-year-old decision and invalidate public-sector "agency shop" arrangements under the First Amendment. The 1977 Abood v. Detroit Board of Education decision held that public school teachers can be required to pay their fair share of the costs the union is required by law to incur in negotiating and administering collective bargaining agreements on behalf of all teachers it represents, even though teachers cannot be required to join a union or contribute to its lobbying expenditures.  In the 2014 Harris v. Quinn ruling, the Court’s conservative justices and its traditional swing vote, Justice Kennedy, expressed a possible willingness to overturn Abood, but did not go so far. Instead, the 5-4 decision limited its ruling to home care workers.

Rather than Justice Kennedy, it is Justice Scalia who is seen as the critical fifth vote needed to support overruling Abood. Based on his questioning in oral arguments, the fate of Abood remains much in doubt. Calling into question the very premise of Abood, Justice Scalia noted to Edward Dumont, arguing on behalf of the Attorney General of California (the Respondent), that “The problem is that everything that is collectively bargained within the government is within the government sphere, almost by definition.”  In his questioning of Solicitor General Donald Verrilli, arguing for the United States as Amicus Curiae in support of the Respondent, Justice Scalia also signaled a willingness to overturn Abood

But the problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes . . .  the situation in a way that that may require a change of the rule. It's one thing to provide it for private employers. It's another thing to provide it for the government, where every matter bargained for is a matter of public interest.

Justices Kennedy and Alito, as well as Chief Justice Roberts, also indicated their hostility to the 1977 precedent. Although Justice Thomas asked no questions, as is his practice, he will presumably side with the Petitioner’s challenge to public sector union agency fees.

The second question at issue in Frederichs is whether it violates the First Amendment to require public employees to affirmatively object to subsidizing political speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. The opt-in versus opt-out question was seen as a fallback position for the Petitioners. The fact it was given relatively little focus by the Justices in oral arguments may suggest there are sufficient votes to side with the Petitioners on the first issue. 

If Justice Scalia joins his conservative colleagues in overturning Abood, the impact on public-sectors unions could be profound as they often depend on the contributions of non-union members for their operations. The case does not involve or directly impact private-sector unions or employers. However, a ruling to prohibit public-sector union agency fees may be felt at the polls if public unions' political clout is also weakened by the decision.  While the oral arguments are not necessarily dispositive of the ultimate decision, stakes for overturning the almost 40-year precedent for public-sector unions could not be higher.