Death of a Precedent? Union Dues Case On Life Support

The Supreme Court, hearing arguments today on Freidrichs, is leaning toward overturning Abood, the 1977 case upholding mandatory union agency fees for collective bargaining activities. Brief thoughts. 1. The current state of the law does not require a teacher or other public employee to join a union, or to pay for its political agenda. The law does require, however, that everyone in the bargaining unit pay his or her fair share. This prevents the free-rider problem. 2. Abood has some of the risk-factors I found in Supreme Court precedents that it overturns. If you would like a data-driven perspective on Friedrichs, see my Hofstra Law Review (2014) article: Click here. 

Sum: I examined the voting patterns in more than 200 cases the U.S. supreme Court overturned since the late 1700s. The two biggest indicators for overturning a precedent were (1) the degree of fragmentation in that ruling, and (2) the age of the ruling. Abood—the case at the heart of Freidrichs— does not exhibit the classic 5-4 split in my research findings (see tbls. 2.2, p. 397). However, Abood is unusual because it had three concurring opinions under the names of five Justices.

In other words, the decision had widely spread low-intensity dissensus (no dissenting opinions). This is a warning sign for the longevity of a precedent, as my research shows. Personally, I favor leaving Abood intact. I concluded in my article:  “Dissonance and confusion do nothing to inspire confidence in the law. … The better approach is to reinvigorate the Court’s consensual norms.”