The conservative wing of the Supreme Court appeared receptive toward the arguments of anti-union plaintiffs on Jan. 11 during oral arguments in the case Friedrichs vs. California Teachers Association.

The case, previewed in January’s Electrical Worker, threatens to deal a significant blow to public sector unions by eliminating so-called “fair share” or “agency” fees typically paid by non-members to help cover the cost of collective bargaining.

The nine plaintiffs, all California schoolteachers, claim fair share fees infringe upon their First Amendment rights when contract negotiations cover issues with which they disagree.

Led by Justice Samuel Alito, the court’s conservative judges pointedly questioned lawyers for the union side. Justice Anthony Kennedy, often the court’s swing vote thanks to his centrist ideology, appeared hostile to labor’s argument.

“The union is basically making these teachers compelled riders for issues on which they strongly disagree,” Kennedy said, arguing that even simple contract issues like merit pay, tenure and classroom size are inherently political when the party across the negotiating table is a government representative.

Justice Antonin Scalia, who some legal experts had pegged as a potential supporter of labor’s thinking, made a similar argument to Kennedy, saying, “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”

A ruling for the plaintiffs in this case would necessarily overturn the 1977 case Abood vs. Detroit Board of Education, which has become woven into the fabric of tens of thousands of public employee contracts over the past 40 years.

That precedent allows for the collection of agency fees as a means to control so-called “free-riders,” or those who enjoy union representation without actually contributing anything toward the costs of their representation.

The California Teachers Association and its allies, which included numerous states and the federal government, argued that the plaintiffs failed to meet the standards for the court to overturn decades of precedent, a principle on which America’s legal system relies for continuity.

The teachers, suggested Justice Elena Kagan, face a “heavy burden” to justify overturning Abood. “What special justification are you offering here?” she asked the attorney for the plaintiff.

Nevertheless, a ruling against labor could mean a major financial hit for some of the largest unions in the country, particularly the American Federation of Teachers, National Education Association, and the American Federation of State, County and Municipal Employees, who have more than 6 million members combined.

While primarily a private sector union, the IBEW does count among its ranks tens of thousands of government employees in jobs ranging from public utility linemen to police officers, state attorneys general and emergency dispatchers.

During questioning, Scalia offered the slightest hint of a silver lining for private sector unions who could find themselves under attack if the court sides with the plaintiffs. The justice made a point to highlight the differences between public and private sector union representation. "The problem,” he said with Abood, “is that it is not the same as [with] a private employer."

A decision in the Friedrichs case is not expected until near the end of the court’s session in June, and court observers cautioned that drawing conclusions based on oral arguments could be premature.

At an American Constitution Society briefing the week before Friedrichs, Andrew Pincus, a partner at the global law firm Mayer Brown warned, “I think anyone who thinks that anything is ‘baked’ in Supreme Court decisions hasn’t had a lot of experience with the court.”

Photo used under a Creative Commons license from Flickr user Davis Staedtler.