In his acceptance speech at the Republican National Convention, Donald Trump emphasized once again that the issue of replacing late U.S. Supreme Court Justice Antonin Scalia with someone of similar conservative judicial philosophy “will be one of the most important decided by this election.” There is no better example of this importance than the court’s recent deadlock on the critical Friedrichs v. California Teachers Association case on forced funding of public employee unions.
In the Friedrichs case, the non-union teacher plaintiffs argued that union-bargained contracts, which cover both union and non-union teachers, are inherently political documents since they involve public spending, negotiation with public school officials, and approval by elected school boards.
These contracts also include provisions, such as layoff and discipline policies, that are public policies and are inherently political.
Thus, the plaintiffs argued that being forced by state law to pay so-called “agency shop” fees to the unions to negotiate such contracts violated their First Amendment rights of free speech and free association.
How important was Justice Scalia vis-à-vis the Friedrichs case? As Mr. Trump might say, it was “HUGE.”
Justice Scalia initiated perhaps the most critical line of questioning during oral arguments on the case. He honed in on the nature of union collective bargaining contracts, and then he pressed Edward Dumont, representing the state of California.
“The problem,” Scalia posited, “is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”
“Should the government pay higher wages or lesser wages,” queried Scalia, or “should it promote teachers on the basis of seniority.” He observed, “All of those questions are necessarily political questions.”
The response of California’s attorney raised eyebrows. “I don’t disagree with that,” acknowledged Dumont. With that shocking admission, a 5-4 decision for the non-union plaintiffs seemed assured until, of course, Justice Scalia passed away before the court vote on Friedrichs. The eventual 4-4 vote meant that the decision against the plaintiffs issued by the liberal Ninth Circuit Court of Appeals held sway.
It is important to step back and contemplate the monumentality of the change of outcome in the Friedrichs case due to Justice Scalia’s death. The court was about to rule that workers could not be forced to fund public employee unions, one of the most powerful organizations in America. Such a decision would have had earth-shattering political and policy consequences. Yet, it turned out not to be.
John Hudak, a senior fellow at the liberal-leaning Brookings Institution, has written that “Scalia’s death halted conservative jurisprudence on the Court.”
“The only way in which the Supreme Court will be able to sustain some of its most high-profile conservative rulings,” he observed, “would be if a Republican president were elected in November.”
Hudak specifically noted that a new Democrat-appointed justice would ensure that cases involving “the power of unions,” among other controversial issues, would have “a powerfully liberal flavor.” In other words, conservatives can forget about ever winning in cases like Friedrichs because it will be the unions that will win, win, and win.
“If a Democrat succeeds Obama,” concluded Hudak, “the Court’s conservatism will be buried with its first Italian-American justice.” Just let that sink in, and shudder at its implications.