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High Court Decision A Blow To Public Sector Unions


This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block hosting from NPR West in Southern California.


And I'm Robert Siegel in Washington, D.C. Today, the Supreme Court weighed in on the fight over the rights of public employee unions, and it dealt unions another major defeat. By a 5-to-4 vote, the court ruled that public employees who are not union members do not have to pay special fees to finance a union's political activities unless they affirmatively agree. NPR's legal affairs correspondent Nina Totenberg explains.

NINA TOTENBERG, BYLINE: The Service Employees International Union, the SEIU, is the exclusive bargaining representative for all California state employees. In July 2005, the union created a special emergency fund to fight several anti-union propositions on the November ballot. It sent out an emergency assessment to pay for its campaign, and the state comptroller began collecting the money automatically from paychecks. Several state employees who were not members of the union challenged the payment in court on behalf of 28,000 nonmember employees.

These nonmembers normally pay part of the annual union dues because the courts have ruled for decades that nonmembers otherwise would be free riders reaping the benefits of union negotiations for salary and benefits without paying for it. But this special assessment - totaling $12 million - was aimed primarily at fighting referenda that the union considered hostile. And although the union eventually refunded money to nonmembers who objected, today the Supreme Court said that was not enough.

Writing for five members of the court, Justice Samuel Alito said that refunding the money later meant that those who objected had essentially given the union a loan, and that, said Alito, unconstitutionally forced these individuals to subsidize a political effort they disagreed with. The court majority did not leave matters there, however. It went on to say that when the union notifies nonmembers of a special assessment, the burden is on the union to get the nonmember to opt in.

An opt-out provision is not enough, the court said. We've already tolerated union impingement on the First Amendment by allowing annual dues assessments for the union's nonpolitical activities, said Alito. But allowing an opt-out system for special assessments like this one, he said, represents a remarkable boon for the union. Justices Sotomayor and Ginsburg agreed that the union should have provided specific notice of the special assessment, but they said an opt-out provision would be sufficient to protect the First Amendment rights of nonmembers who objected.

Sotomayor blasted the majority for reaching out to decide issues that had not been briefed or argued before the court, namely the opt-out versus opt-in question. Justices Breyer and Kagan picked up that theme in their dissent. Justice Breyer, in a rare oral dissent from the bench this morning, noted that the court, without hearing argument, had issued a broad decision that essentially declares unconstitutional existing laws in many states. The majority, he said sardonically, does not normally find state laws unconstitutional without at least giving those who favor the laws an opportunity to argue the matter.

Reaction to the decision from all quarters was pretty unanimous. The court had struck a big blow to public employee unions, and the language of the opinion suggested that five justices may be prepared to do more damage in the future, even if it means reversing decades of labor and First Amendment law. Steven Schwinn is a professor at John Marshall Law School in Chicago.

STEVEN SCHWINN: It's an extraordinary opinion. It goes beyond what the court needed to rule on. And it goes to great lengths, in my estimation, to gratuitously beat up on unions.

TOTENBERG: Ilya Shapiro, of the libertarian Cato Institute, agreed the decision represents a big hit to unions.

ILYA SHAPIRO: It's not as big as Scott Walker surviving recall, but it's pretty big.

TOTENBERG: Again, Professor Schwinn.

SCHWINN: It puts a thumb on the scale against the union, whereas the thumb had been on the scale in favor of the union.

TOTENBERG: In light of the Supreme Court's 2010 ruling allowing corporate campaign contributions, today's ruling prompted a fair amount of speculation about what the implications might be for shareholders who object to corporate campaign spending on behalf of candidates and political causes. Harvard law professor Benjamin Sachs argues that the two are analogous.

BENJAMIN SACHS: If we give union members the right to opt out of, to refuse to fund union political speech, we ought to give shareholders the right to opt out of funding corporate political speech.

TOTENBERG: Nina Totenberg, NPR News, Washington.

SIEGEL: And, Nina, thanks as always for reporting on the Supreme Court rulings that have been announced. You know, it's this time of year when what we wonder every Monday and Thursday is what hasn't been announced yet. So what hasn't the Supreme Court released, and when might they release it?

TOTENBERG: They're toying with us, Robert.


TOTENBERG: They're just toying with us. We're looking at a train wreck probably next week of opinions. Obviously, the president's health care overhaul is to be decided. The challenge to the Arizona immigration law, which is a model for a lot of other states, that's to be decided. There's a case testing whether it's cruel and unusual punishment to send 14-year-olds and younger to prison for life for murder...

SIEGEL: Without parole.

TOTENBERG: ...without parole. And then there's the so-called stolen valor law in which Congress made it a crime to lie about having received military medals, and that's being challenged as a violation of the First Amendment. And that's what - those are the biggest ones. There are a few others, and some of them might be sleepers. You never know.

SIEGEL: Yeah. And the court announces decisions on Mondays and Thursdays?

TOTENBERG: We don't know what days they - we know that the court announces decisions next Monday. Beyond that, we know nothing. They like it that way: We know nothing.


SIEGEL: OK. And on that humble note, Nina Totenberg, thanks again.

TOTENBERG: My pleasure. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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