There is one critical Supreme Court case that every American should read up on. Abood v. Detroit Board of Education was decided by SCOTUS in 1977 — WITHOUT A SINGLE DISSENT. In that case, the Supreme Court upheld the constitutionality of mandatory agency dues for public sector union workers.
Labor unions routinely engage in political advocacy that extends beyond the representation of their workers. Some represented workers are bound to disagree with the political stances taken by their union. The first solution to this problem was to abolish closed shops — an arrangement whereby a person’s continued employment at a union employer was conditioned upon their membership in the union. But abolition of closed shops created a free-rider problem. Under open shop rules, employees who disagree with their union’s political stances are free to quit the union. This creates a classic free-rider problem, because the union must represent all of the employees in the bargaining unit — union and non-union. The answer to this problem was very effective and is called the agency shop.
In Abood v. Detroit Board of Education, a Detroit school teacher, who objected to the mandatory nature of union membership as a public employee, sued the Detroit School District and the State of Michigan, challenging the mandatory nature of union membership as violative of his First Amendment free speech and freedom of association rights. Even before this case came up (and under then-existing Michigan law), Abood was not required to pay full union dues and was instead allowed to pay reduced, agency fees. This wasn’t enough for Abood, who objected to being coerced into being a member of the union, even though he wasn’t paying full dues. The Supreme Court agreed that Abood could not be forced to be a member of the union as a condition of his state employment, but that the State was within its power to require Abood to pay agency fees to the union; fees that directly cover the union’s costs in representing Abood as a member of a bargaining unit.
This arrangement satisfied the requirements of the First Amendment. Abood would be allowed to continue to work in his chosen profession and for his current employer without having to be a member of the union and also not have to support the political advocacy of the union. However, he was still required to pay his fair share of the costs of representing him as a member of the bargaining unit. This decision comports with precedent and preserved Abood’s right to object to the prevailing political positions of the union.
In 2016, SCOTUS was set to overturn the 40-year old Abood precedent using the test case Friedrichs v. California State Teachers Ass’n, where several public school teachers in California (backed by powerful conservative special interest groups) challenged the same mandatory agency shop dues that were unanimously found constitutional in 1977. People were surprised when the Supreme Court decided to take the case; most assumed that SCOTUS had at least five justices in favor of maintaining the Abood precedent (Ginsberg, Breyer, Sotomayor, Kagen, and Kennedy). Friedrichs was argued in January 2016. In February of that year, Justice Scalia passed away. Many assumed that the now eight member court would uphold the Abood precedent on a 5-3 vote. That didn’t happen. Instead, the court deadlocked 4-4 with Kennedy voting with the arch-conservatives. Since the lower federal courts had upheld California’s agency shop rule, the 4-4 decision meant that the lower court decision would stand. Kennedy’s vote to overturn the Abood precedent shocked many people. The Court denied rehearing on the case in June of 2016, but SCOTUS can bring Freiderichs (or a similar test case) back up again since the issue was not settled by the Court.
This is where Neil Gorsuch is so dangerous. He would most assuredly provide the critical 5th vote in favor of overturning Abood. Outlawing mandatory agency dues for state employees would be the death knell for public sector collective bargaining in the United States. This is why Gorsuch cannot be confirmed.