The conventional wisdom is that Justice Scalia is the swing vote in Friedrichs v. California Teachers Association, but he gave no indication at this morning’s argument that he was anywhere but on the plaintiffs’ side. Chief Justice Roberts and Justice Kennedy — other potential defectors from the pro-workers, anti-compelled-speech side — were similarly solid. With Justice Alito having written the two recent labor-related opinions, the most likely fifth vote for the unions (supported by California and the United States) becomes Justice Thomas, but only because he said nothing, as is his wont.

Not surprisingly, the biggest issue for the more conservative justices was the matter of compulsion: why should non-unionmembers in the public sector be forced to pay “agency fees” for so-called collective bargaining when (a) all issues that are collectively bargained by public-sector unions are matters of public policy (not simply wages and conditions of labor as in the private sector), and (b) those workers disagree with the supposed “benefits” that the unions want them to pay for (e.g., tenure protections versus merit pay). “Is it even okay to force someone to contribute to a cause you do believe in?”, asked Justice Scalia. “We’re not talking about free riders, but compelled riders,” posited Justice Kennedy.

“Since public employment contracts are submitted for public comment, that suggests this is different than private-sector collective bargaining,” explained Chief Justice Roberts, who was silent during the plaintiffs’ half of the argument and an active questioner of the union and governments (typically a sign of agreement with the former and disagreement with the latter). 

While the progressive justices focused on the importance of stare decisis — respecting precedent and the reliance interests built up around it — that didn’t appear to be a major concern for anyone else, regardless of the age of the ruling that’s now under attack (Abood v. Detroit Board of Education from 1977). “Everything that’s collectively bargained [in the public sector] is necessarily a political question,” thundered Justice Scalia in describing why a ruling to strike down agency fees would even comport with Abood’s statement that states can’t force workers “to contribute to the support of an ideological cause [they] may oppose as a condition of holding a job.”

In other words, to the extent we can predict anything based solely on oral argument — take this with a mine of salt – I’d much rather be us (those who support the teachers) than them (those who support the teachers’ union and state and federal governments). If that’s how the case goes, it would be a huge victory for workers’ rights, the First Amendment, and educational freedom — and probably the most important ruling this term. 

We’ll find out by the end of June.

For background and commentary about the case, see this two-minute primer, Cato’s brief, my two recent op-eds, and this podcast.