WAGUESPACK: The Court’s Adieu to Abood

Have you ever heard of Ernesto Miranda?

Maybe not, but I bet you are familiar with the rights associated with his last name. Ernesto was the plaintiff in the landmark case Miranda v. Arizona (1966), in which the U.S. Supreme Court ruled that a person arrested in this country must be granted certain rights known as the “Miranda rights.” Any half-conscious person who has watched a crime show in the last 50 years has surely heard the expression, “You have the right to remain silent…” Nearly half a century later, this ruling continues to affect many of our legislative and policy decisions pertaining to law enforcement and criminal prosecutions.

Certain cases over the years have become just as well known as Miranda and still greatly influence policy decisions in their respective areas. Mostly everyone is aware of the impact Roe v. Wade (1973) continues to have on the debate between pro-life and pro-choice advocates. Brown v. Board of Education (1954) set the tone for integration efforts in public schools in this country, while Gibbons v. Ogden (1824) reinforced the exclusive authority of Congress to regulate interstate commerce. Bush v. Gore (2000) was critical to the victory of President George W. Bush, whereas U.S. v. Nixon (1974) played a significant role in the resignation of President Richard Nixon.

While most of these historical cases probably sound familiar, Abood v. Detroit Board of Education (1977) may not register to many. Though this case flies under the radar for most, it is extremely important to the national public labor unions and serves as the lifeblood for their public employee forced-financing game plan.

In the Abood case, Detroit public school teachers argued they should not be forced to pay union dues since they opposed collective bargaining and disagreed with the political ideology of the union itself. Sounds sensible, but the Court found that the union could charge these teachers for collective bargaining as long as they did not use any of those dollars for “ideological or political purposes.”

While the Court determined the First Amendment protected the teachers from the union using their dues to fund a political or ideological cause, the ruling nevertheless allowed the union to collect funds for collective bargaining efforts regardless of the teachers’ desire to do so. Since released in 1977, this ruling continues to help maintain the forced-financing scheme for unions despite their diminishing popularity and effectiveness in today’s economy.

The Court in Abood chose to perceive a distinct difference between collective bargaining efforts by a public sector union and “political or ideological efforts” by that very same union. Last week, the U.S. Supreme Court ruled in Harris v. Quinn (2014) on a similar fact pattern and came out with a different interpretation.

In the Harris ruling, Justice Alito wrote that, “In the private sector, the line is easier to see….But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.”

This interpretation, while not a reversal of the 40-year guidance given by Abood, does send a clear signal to the public labor unions that this current Supreme Court sees the issue much differently than its predecessors. The response by national union leaders shows they understand this dynamic shift clearly.

American Federation of Teachers (AFT) President Randi Weingarten released a video response addressing the ruling where she said the union will be “emboldened” and also criticized the makeup of the Court itself, saying, “The Roberts court has consistently ruled in favor of corporate interests, while diminishing the rights of labor. This court has built a record of weakening the rights of both voters and working families; no one should be surprised by this decision.”

One of the AFT state affiliates echoed the criticism of the current makeup of the U.S. Supreme Court. Fred Kowal, the president of the United University Professions New York public union said, “The Supreme Court’s conservative majority showed its disdain for labor in Harris, and left the door wide open to future legal challenges of union rights…We’ve got to be politically engaged as never before.”

These union leaders see the writing on the wall and are justifiably concerned that their gravy train may be drying up. The Harris ruling shows the Court is growing increasingly skeptical that collective bargaining efforts by public sector unions are not inherently political in nature. This ruling did not deliver the knock out blow to forced dues collection, but it surely sends the warning shot across the bow. In response, these union leaders are telegraphing that they will respond by doubling down on their political efforts and fight against this Court.

They know the only way to change the makeup of the Court is to ensure a pro-labor president is elected next year. To put a pro-labor candidate in the White House, they know they must become extremely politically active and collect a lot of money from people – even if those people don’t want to contribute. They also know the only way to effectively achieve this is to ensure forced-financing by public workers continues. This circular response is as political as it gets and should come as no surprise, because this is exactly how these “ideological and political” organizations operate.

Like everyone else, members of the Court are finally beginning to see the national public labor unions for what they are:  “ideological and political” organizations that collect dues to implement their agenda. Gladly, this Court is also beginning to appreciate public workers for what they are:  citizens with the First Amendment right to say no to the union and stand up for their own “ideological and political” beliefs.

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