Almost 40 years ago, the U.S. Supreme Court in Abood v. Detroit Board of Education ruled that states could require public employees to pay union dues. The Court, however, now seems poised to sidestep, and perhaps even overrule, that decision. On January 11, the Court heard argument in a case brought by dissident teachers in California who claim that compulsory union dues violate their First Amendment rights. In Friedrichs v. California Teachers Association,  the plaintiffs argue that when government requires one to subsidize a particular political cause – i.e., to put one’s money where one’s mouth isn’t – the principle of free speech is violated. The plaintiffs further contend that almost everything about a public employee union is political, and therefore they cannot be compelled to pay dues or even the “agency fees” the teachers’ unions have been allowed to charge non-members. Based upon the comments at the oral argument, it appears that a majority of the Justices may agree.

Justice Kennedy, considered by many observers to be the swing vote on this issue, seemed to tip his hand in questioning the lawyers for the union who argued that the plaintiffs were merely seeking to become “free riders” in the collective bargaining process. He responded, “The union is basically making these teachers compelled riders on issues with which they strongly disagree.”  Justice Scalia drew a distinction between private employment and public employment “where every matter bargained for is a matter of public interest.” Justices Thomas, Roberts and Allito have indicated in other decisions that they may be willing to cast aside Abood.

If the plaintiffs prevail in this case, the cash collecting ability and political clout of the public sector unions in California could be significantly diminished.  A decision is expected in June.