Dahlia Lithwick discusses the Supreme Court case on public unions on Amicus.

Dahlia Lithwick Discusses Whether Workers Should Pay Mandatory Fees to Public Unions

Dahlia Lithwick Discusses Whether Workers Should Pay Mandatory Fees to Public Unions

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Jan. 19 2016 1:15 PM

The “Labor Pains” Transcript

Slate’s Dahlia Lithwick considers a Supreme Court case that could stanch the flow of funds to public sector unions. 


We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 34, in which Slate’s Dahlia Lithwick discusses Friedrichs v. California Teachers Association, a case that could put an end to the mandatory administrative fees government workers in half the states have paid to unions since 1977. The plaintiffs in Friedrichs argue that forcing them to support public sector union activity violates their First Amendment rights because such activity is inherently political.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

On this episode, Dahlia is joined by lawyers who have authored amicus briefs on both sides of the case: Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, and Samuel Bagenstos, a professor at the University of Michigan Law School. Amicus’ guests discuss the political motivations behind this case and its implications for the future of precedent-based ruling.   

To learn more about Amicus, click here.

Dahlia Lithwick: Hello and welcome to Amicus, Slate’s Supreme Court podcast. I am Dahlia Lithwick, and the next few months promise to be filled with chills and spills at the high Court as the 2015 term rolls on. We’re going to see in the coming months a challenge to Texas’ abortion ban, a challenge to the contraception mandate in the Affordable Care Act. And that all will come on the heels of a challenge to affirmative action in Texas, which the Court has already heard.

But before we get there, next week the Court is going to be tackling another major case that raises questions about the future of public sector unions. Friedrichs v. California Teachers Association is a free speech challenge to a longstanding rule, a rule that says that even though union members can’t be forced to pay membership dues that go to overtly political speech, the state still has an interest in maintaining labor peace, eliminating free riders, and therefore they can make non-members pay what are known as “agency fees” or “fair share fees” that go to the union’s collective bargaining activities.

For almost four decades, the rule has been perfectly clear. Public sector workers could be charged only for expenses related to collective bargaining and not for the union’s political activities, at least in about 25 states that are not “right to work” states. Those do not allow for this at all. But, the nine California teachers who bring suit in Friedrichs argue that even these compelled agency fees violate their own free speech rights by forcing them to support union political positions that they don’t agree with.

Now, some see this case as signaling the death knell to public sector unions by allowing public employees to benefit from collective bargaining agreement but never have to pay their fair share. Opponents contend that a ruling for the teachers would turn every single state into a so-called “right to work” state. It will impact not only California’s teachers unions but unions across the country, including nurses, social workers and firefighters.

Joining us today to discuss the case are two lawyers who’ve filed amicus briefs on either side of this case. Ilya Shapiro will join us first. He’s a senior fellow in constitutional studies at the Cato Institute and editor in chief of the Cato Supreme Court Review. He’s filed more than 150 amicus briefs in the Supreme Court, and filed one on the side of the teachers in this case. Ilya, welcome to Amicus.

Ilya Shapiro: Good to be on.

Lithwick: So, I wonder if you can help us ferret out the very core question that I think a lot of listeners will have, which is, how is this even a speech case? This seems to be about agency fees and union dues and how unions operate. So, help us understand how this is even a First Amendment case from the get go.

Shapiro: Well, lately I think every type of case ends up being a First Amendment case. There’s been a lot of coverage of that. It’s a robust area of doctrine that a lot of people, both on the left and the right and whoever else, use, because I think the Court is interested in it.

And it plays better in the media than if we were arguing about some arcane provisions of labor law, say, in this case. More specifically here, the issue is whether teachers who are not members of a union nevertheless have to pay the union certain fees for collective bargaining services, in theory.

Another way of reframing that is, do you have to pay for speech or advocacy that you don’t necessarily agree with? And that’s why this comes under the rubric of free speech or freedom of association, these general protections that the First Amendment is supposed to provide.

Lithwick: And to be perfectly clear, what Rebecca Friedrichs and the other teachers in this case are saying is that they are being compelled to, because they have to pay these agency fees, they’re being compelled to espouse positions that they don’t want to espouse, that they don’t agree with.

And so, they really are being forced to take positions, in violation of their First Amendment rights, that they don’t agree with. Is that fair?

Shapiro: That’s right. That’s right. And for example, this is in specifically in the public sector context, which makes it an interesting wrinkle. And they’re arguing, first of all, that even collective bargaining in the public sector by unions is political advocacy. Because for example, some teachers might want merit pay, others might want tenure protections.

Some might want defined benefit pensions, others might want other kinds of pensions. So, there’s each one of those sorts of issues at that bottom is a public policy issue. Education policy, budgeting, taxes, all of these sorts of things. And so, in the public sector context, it’s a little different than simply bargaining over wages and hours and these sorts of things that come in any run of the mill labor context.

Lithwick: I’m going to ask you to help us understand. It seems to me that you can’t understand this case unless you understand this one towering piece of precedent, right? 1977, Abood v. Detroit Board of Education. Can you help us understand what the world looked like before Abood, and then what Abood did in 1977?

Shapiro: Sure. Abood itself was building on the shoulders of an even earlier precedent from about twenty years earlier, from the fifties. I think it’s called Machinists Union.

And there, the Court decided that in the interest of preserving labor peace, literally to prevent fights, violence in the workplace, not simply between management and unions, but among unions who were trying to get the workers to be their own members, and they would compete against each other. You can imagine this world, more than half a century ago, where this type of violence between and among unions and management was growing concern. The Court said, in that interest, we can have exclusive bargaining units.

Once a union is declared, that’s it. It gets the monopoly, if you will, on worker collective bargaining for that employer. And employees, even if you’re not a union member, can be forced to pay for the “benefits” that they receive through this collective bargaining process. So, we preserve labor peace and prevent what’s called freeriding. That is, people who don’t pay any fees and yet get the benefits of the collective bargain.

And in this 1977 case, Abood v. Detroit Board of Education, the Court made clear that while non-members can’t be forced to pay for lobbying and election campaigns, some of the more overtly political things that unions do, they can be charged, if the state determines, and currently indeed about half the states have this and half don’t, laws that say that non-union members can be forced to pay these agency fees. But regardless, in all states, in this 1977 case, Abood, the Court said that states can’t force workers “to contribute to the support of an ideological cause they may oppose as a condition of holding a job.”

Lithwick: And so, to help break it down, it seems to me that what you’re saying and what the teachers are saying in this case is, look, there’s no real clear space between being compelled to contribute to a “ideological agenda” that has to do with core political speech and being forced to contribute to an ideological agenda that’s just associated with collective bargaining. Right?

Like, both of those things are ultimately compelled speech. There’s no real principle differences between the two types, right?

Shapiro: Yes. And particularly in the public sector context, collective bargaining is inherently political.

Lithwick: I wonder if you want to talk—you referenced this briefly before. But talk about, you know, the justifications that the Court held out in Abood for why they were willing to hive off agency fees and collective bargaining from other forced speech, were, you know, it promotes labor peace that was important to the Court, avoids the freerider problem that was important to the Court.

Are those problems gone? Or do you just feel that the Court was mistaken when it said that those interests were more compelling than the free speech interests of the speakers?

Shapiro: Probably more that latter. In the sense that—well, first of all, it doesn’t seem like labor peace is really—

Even going back to the 1950s case that I mentioned, the Machinists Union, the Court asserted that that issue as a plausible reason for having exclusive bargaining agents, and then all of these other powers were built upon that. So, I know in the last couple of cases that the Court has heard, Harris v. Quinn and Knox v. SEIU before that. A number of the justices kind of cast doubt on whether that is a continuing viable interest if it ever was.

And if in terms of freeriding, if you don’t really agree that what you’re getting is a benefit for you, then you’re not exactly freeriding by not paying for that.

Lithwick: And what do you do with the stare decisis problem? In other words, I think a lot of the pushback here is, look, Abood is good law. You know, the Court has reaffirmed it, reaffirmed it. Most of the sitting justices have reaffirmed it. Are you just going to say, oops?

Shapiro: Well, in general, sure. Stare decisis is an important issue, especially for justices who are more, I think, institutionally or modally interested rather than ideological or in terms of jurisprudential theory, like a John Roberts for example, who cares a lot about the institutional integrity of the Court and these sorts of structural concerns, not simply doctrinal ones about how the law is written.

But even Roberts himself in, for example, Citizens United wrote a concurrence specifically about stare decisis, talking about the various factors that courts consider when they consider whether the interest in correcting a case they think is wrong overrules or is stronger than the interest in preserving stability in the law upon which people might have built reliance interests and things like that. So, I mean it really depends on what the justices want to do here. And ironically, it may be Justice Scalia who is the swing vote on that question, not Roberts or Kennedy.

Kennedy is very strong on free speech issues. And so, I think if he can be convinced, and there’s no indication that he wasn’t in the previous labor cases recently that I mentioned, that if he can be convinced that it’s a First Amendment case, not something else, then he’s going to be very protective and perhaps leading the charge in overruling Abood. But, Scalia. And I think you’re going to ask me about this shortly, that he might be kind of the last vote to draw between whether to overrule Abood, or even if the teachers win, but maybe more narrowly.

Lithwick: Well, then I’m going to ask you about Scalia now. We’re going to play a little audio for you, Ilya, which is one of the best, fun things we get to do on this podcast, from that argument in Harris v. Quinn in 2014. Here’s Justice Scalia sounding—and you’re quite right. I think he shocked a lot of people when he sounded like he was going to be very reluctant to overrule Abood. Let’s have a listen.

Justice Scalia: —private employers. There’s some private employers who think they’re better off with a closed shop.

And they just want to deal with one union, and they require all the people that they hire to become a member of this union, and to pay union dues for representational purposes. They do this as private employers, because they think it is in their interest as an employer. Why can’t the government have this same interest?

Lithwick: So, Ilya, first of all, help us understand what the issue was in Harris v. Quinn, and then help us understand this burning question of why Scalia does not seem to be onboard with the project of doing away with Abood.

Shapiro: Well, in Harris v. Quinn, the issue was fairly different than what’s at issue with Friedrichs. There is kind of the line of what is a direct government employee versus independent contractor, rather than can someone be compelled. And Scalia was talking about the government as a market participant, and that distinction between independent contractors or not.

Here, he might view things differently. In the sense that it is that question of government employees who don’t want to join the union. But it’s an open question. I’m not saying that I know exactly what Scalia is thinking. But there are three major actors here. There are the workers, there is the union, and there is the state government. It’s not the workers against the government. It’s sort of the workers against the government law that the unions like to get more money for themselves.

And will Scalia see this as the government interfering with the relationship between unions and the employers, say? He’s also been on record in saying that if employers want to have a closed union shop where everyone has to be a member, or I suppose everyone has to pay these agency fees, they can do that. I’m not going to interfere with that freedom of contract, say. But the government might not be able to, or might not - should not have the power to compel that sort of result.

Lithwick: Ilya, I want to just close by giving you a chance to defend against the other side in this case, which says, look, this is just a transparent power grab by the right to work industrial complex.

You know, this is a Koch brothers fueled effort to eviscerate public sector unions and to in effect turn every state into a right to work state. This is simply about gutting union power in America. Fair? Unfair? Tell me why.

Shapiro: It depends how you define your terms. And you know, whether the Koch brothers funded or anybody else funded is irrelevant.

We’re talking about, you know, very basic legal principles. And I think the fact that this comes from out of the public sector is a very important - it’s not just a little factoid or a distinction without a difference. President Franklin D. Roosevelt, for example, no slouch when it comes to supporting worker’s rights, opposed the formation of public sector unions in the first place. He wrote in an important letter to the president of the National Federation of Federal Employees in 1937, “All government employees should realize that the process of collective bargaining as usually understood cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management.”

So, there is something going on here in terms of trying to understand that public sector unions are a different sort of beast, in the way that, you know, they’re supposed to be accountable to the taxpayer. And it shouldn’t be the case that the state government bargains with the union, akin to two wolves bargaining with each other about what’s for dinner.

And the sheep, whether the sheep being the taxpayers or the workers, don’t get a say in that sort of relationship. So, I don’t think this is an attack on unions wholesale. If unions are giving benefits to their workers, then their workers should want to join them and should want to pay for those particular benefits. And in those right to work states, as you say, there a lot of workers seem to be happier in terms of higher job growth rates and other sorts of things.

In the education context, there’s actually an interesting study that’s just come out in the winter 2016 issue of Education Next, which is a journal published by the Hoover Institution in Harvard’s Kennedy School, that found that laws forcing school districts to negotiate with teachers unions had a modest but statistically significant impact on students’ future employment and earnings. So, there are larger public policy issues tied into teachers, really and other government employees, really being the agents of their own employment.

And again, and there’s a lot of complicated wrinkles any time you have this multifaceted type of case that joins different stakeholders and public policy and kind of taxpayer interests, citizens interest, more broadly. But I wouldn’t characterize this as kind of just attacking unions for their own sake. I would say that this is making sure that all interests are aligned and everyone’s rights are being respected, workers as much as unions.

Lithwick: Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court review. He’s filed more than 150 amicus briefs in the Supreme Court, filed one on the side of the teachers in this case, and I have to add, parenthetically, is the father of a brand new baby. So, Ilya, thank you so very much for making time to join us on Amicus. We loved having you.

Shapiro: My pleasure. And Jacob Thomas Shapiro is going to enjoy hearing this when he’s old enough to read Supreme Court opinions.

Lithwick: I can’t wait. Take care. Joining us now to talk about the other side of the same case is Sam Bagenstos, who teaches law at Michigan and who is a frequent litigator in civil rights and federalism cases at the court, and who filed an amicus brief in this case on behalf of cities and counties that engage in collective bargaining. So, Sam, welcome back to the show.

Sam Bagenstos: Thanks. Glad to be here.

Lithwick: I wonder, Sam, if you can help us by locating us in the world of public sector unions versus private sector unions.

Are they really different? I know that in Abood the Court was really clear that public sector employees are not fundamentally different from private sector employees. But that seems to be one of the questions that’s now in doubt here.

Bagenstos: Well, I think that’s right, and actually is one of the motivators for the cities I represent in actually filing the brief we filed.

So, one of the background principles that the Supreme Court has had for quite a long time, including in the Abood case, but in many other cases, is that when governments act as employers, they act as employers. And they have the same kind of rights, more or less, with some differences, but not many, as any other employer. And that when you’re working for a government agency, you’re a worker. And you have the same sort of rights, more or less, as you would have as any other kind of a worker.

And what the folks who are challenging the fee arrangement in the Friedrichs case are trying to do is say, no, no, no. At least today, we want there to be a big difference between the relevant rules in government workplaces and in non-government workplaces. And that would be a big change in the law, and would be potentially something that would make it much harder for folks who run government agencies to actually run their agencies and deliver the services that people depend on.

Lithwick: So, for your purposes, they are the same. For Rebecca Friedrichs purposes, they are so fundamentally different that Abood—just the logic of Abood doesn’t hold. Is that fair?

Bagenstos: Well, I think that’s fair. I think that what Rebecca Friedrichs and the folks on her side of the case are trying to say is, essentially, when they have a workplace grievance of the type that a union that represents the workers in her workplace would deal with—a grievance about scheduling, or a grievance about reassignment to a particular job—that because their employer happens to be a government agency, a school district, that that all of a sudden becomes a matter of political speech, as opposed to simply a workplace grievance.

And the Supreme Court has express for years and years, including in Abood, but in many, many other cases, the principle that a workplace grievance is still a workplace grievance.

There might be some different issues in government employment, but for the most part, if what you’re doing is complaining about something having to do with work, that’s not political speech. But what Rebecca Friedrichs and the folks on her side of the case are trying to do is say, no, this really is a matter of political speech, which would be a major change.

Lithwick: So, let’s talk about stare decisis, because in a kind of fundamental way, one of the issues before the Court is, if Abood was wrong in 1977 and it’s wrong now, why not just say it’s wrong?

And certainly, Justice Samuel Alito has taken that posture. You know, he’s invited this case, or all but invited it, and said, let’s just get it right this time. Does the Court have an obligation to uphold Abood if it was wrongly decided in 1977?

Bagenstos: Well, as a general matter, the Court does follow this principle of stare decisis, which is that they adhere to their precedents. And they adhere to their precedents—it doesn’t, the principle of stare decisis doesn’t mean anything if the Court says, well, we’ll adhere to our precedent if we would have agreed with those precedents in the first place.

Then you don’t need stare decisis. You just decide, did I like this case or not? The reason why the Court says generally, we want to adhere to our prior precedents is not just because they were probably right, but also because the whole legal system has an interest in the law staying stable. And particularly in a context like this, there’s a really strong interest.

For one thing, you have hundreds if not thousands of municipalities around the country who have entered into contracts with the unions that represent their workers, that depend on the collection of a fair share fee being legal, that might have to renegotiated under stress in the immediate aftermath of a decision overruling Abood. You have other principles of First Amendment law that are connected to, similar to, built upon Abood that would have to be reconsidered if the Court were to overrule Abood.

So, there’s a lot that would be unsettled if the Court were to change its mind here. Now, I happen to think that the balance the Court struck in Abood is a sensible balance in the first instance. But even when the Court says, we might have made a mistake in a prior case, it generally follows the principle of not changing its decision because changing its decision would be so unsettling for the whole legal system and everyone who is regulated by it.

Lithwick: So, this is a good opening, Sam, for you to talk a little bit more specifically about your particular brief in this case, which is filed on behalf of cities and municipalities that have a real reliance on the stability and the predictability of the Abood rule. Do you want to talk a little bit more about the consequences of overturning that? I think in your brief you talk about pulling the rug out from under these jurisdictions if everything were to change all of a sudden.

Bagenstos: Yeah. You know, and so this is, I would say, you know, a maybe unusual situation where you have a bunch of employers - that’s who I’m representing, a bunch of employers - who are coming into the Supreme Court and saying that this right that is enjoyed by unions should be protected, this right to collect a fair share fee. And they think it’s important to them as employers that the Court not overturn its prior precedent.

In part, just because if the Court were to overturn its prior precedent, what you would have is kind of a free for all in all of the cities I represent and in many others, where there are collective bargaining agreements that would all of a sudden potentially be illegal. And the unions that represent the workers would have to decide, you know, what are we going to press for now that we can’t get our fair share fees? And that might lead them to take particularly strident or short term types of positions that might lead to renewed labor strife, the very thing that fair share fees are designed to prevent, and the very thing that employers like the ones I represent are trying to avoid by entering into agreements with unions that represent their workers.

But there’s another issue that I think is really important and that we talk about a lot in our brief, which is, a number of the cities I represent - and these are cities from all across the country. I mean, from Fairbanks, Alaska to the mayor of Huntington, West Virginia, Louisville, Kentucky. You know, lots of cities and counties in between.

And one of the things that my clients have found is that by having strong and stable negotiating partners on the other side of the bargaining table representing the workers, they’re able to develop these long-term relationships which actually create an opportunity to find cost savings and pass some of those cost savings on to the workers who helped to discover the potential efficiencies, and pass a lot of those cost savings on to the taxpayers in the form of lower taxes and more efficient services.

And so, one of my clients, the city of Chicago, the union that represented the sanitation workers said to the city, look, we can find you a more efficient way of taking out the garbage. If you just change the routes that the garbage trucks follow, you’ll actually be able to have fewer garbage trucks on the roads at any given time, and that’s going to be cheaper.

And the city saved $7,000,000 as a result. Other places, Toledo, the union came up with an idea of doing safety training for its workers, which reduced worker’s compensation costs. So, there are lots of things like that that are only made possible by having a strong and stable representative of the workers that knows it’s going to be there, that knows who to talk to in the city to say, here are the efficiencies that we can find, and also knows it has the strength to get a piece for its workers of the efficiencies that they find.

And so, for my clients, it’s really important that we continue to have the kinds of strong and stable unions that agency fee or fair share fee arrangements make possible.

Lithwick: Sam, can you talk a little bit about the freerider argument in this case? Because I think it’s not entirely intuitive probably to our listeners that one of the reasons that the Court did what it did in Abood sort of said, we’re going to cordon off agency fees because otherwise it’s just not fair.

People get the benefits of collective bargaining without paying anything. And one of the things that happened in oral argument, at least in that case we’ve been talking about from 2014, Harris v. Quinn, when Justice Alito said, with respect to the freeriders things, oh, that’s not going to happen. People won’t necessarily all drop out. And Elena Kagan responded pretty frustrated, what, do you think economics doesn’t work in the world?

So, help us understand why there’s a genuine fear that if people don’t have to pay these fees, they won’t pay these fees, and unions will not be able to finance themselves.

Bagenstos: Yeah. So, it may be a little counterintuitive, but actually it’s a pretty straightforward idea. The union represents all of the workers in the workplace. It negotiates with the employer and says, here are the terms and conditions that we’re going to agree on. Here’s the wages, the salaries, the benefits, the grievance system, whatever we’re going to agree on.

And everybody who is in the workplace, whether they’re a member of the union or not, gets the benefit of that. Because we don’t require anybody to join a union in this country. You get the benefit whether you’re a member or not. So, imagine you’re an ordinary worker. And you don’t have any particular beef with the union. You think maybe they’re doing even a really good job in representing the workers. But you know that regardless of whether you individually pay union dues or anything else to the union, the union has an obligation to negotiate on your behalf, and you’re going to get the benefit of whatever they do.

Well, you’re an ordinary worker. You’ve got a lot of things to spend your money on, right? So, why would you spend money to support the union when it’s not going to individually get you anything? Even if you like what the union is doing, the rational thing to do, if you’re thinking purely in individualistic, rational terms, the rational thing to do is say, well, I’m going to let the union do this and I’m going to take my money and spend it on the things that I want to spend it on. You know, which could be important things I want to spend it on. And the problem is, if everybody makes that individually rational decision, then pretty soon the union doesn’t have any money or has very little money to do the things it needs to do to prepare for negotiating with the employer, to administer the contract once the contract is entered into, and to administer the grievance arbitration procedure that’s often essential in these contracts to make sure that individual workers are protected when they get disciplined unfairly.

So, it’s basically everybody is acting perfectly rationally. People can be acting in ways that have nothing to do with dislike of the union. And the result is the union ends up not having the resources it needs. And you know, this is not just theoretical. I mean, this is something we see is real. That in places where you don’t have agency fees or fair share fees, what happens is that unions end up getting substantially less in the way of resources.

Even though if you take polls of employees, employees tend to want to be represented by unions. They tend to want to have someone advocating for them.

Lithwick: What is the scope of the fallout if the Court says, okay, Abood is over. Assume that people no longer pay in and public sector unions are what? Eviscerated? Slightly hobbled? Kneecapped?

What are we looking at? What does the world look like if the Court does what I think a lot of progressives in this country are worried that the Court really wants to do?

Bagenstos: Well, you know, I think it’s hard to predict exactly what will happen if the Court were to rule that Abood is overruled. You know, I think one thing we know is it would be a significant blow to unions that represent public employees in all the states that you’re talking about.

And you know, it’s a lot of states with a lot of people in them. It’s often the most populous states and the most populous cities in those states where you have union representation of the workers. So, it would make a difference. You know, would unions try to find strategies to continue to do their work? Sure. And in some places, they might succeed. You know, in some places, they’d be able to overcome the freerider problems by developing or drawing on a general kind of pro-union fervency that exists in the community.

In some places, they might respond—and I know a lot of my clients are worried about this—they might respond by becoming much more militant. The unions that can’t rely on fair share fees to overcome the freerider problem with say, well, here’s what we’re going to do. We’re going to be very open and obvious champions of the workers.

And we’re going to do it ways that are very disruptive but draw maximum attention, everything we’re doing. And that that could actually be harmful to taxpayers and to folks who depend on government services. You could see more strikes. You could see more kind of high stakes labor strife. That’s one thing we might see. And that has been the strategy in right to work states for unions that have tried to continue to preserve their resources, has been to become more openly militant as a way of kind of developing support from the workers.

Lithwick: Sam, I want to close by asking you a question that I really hate asking con law professors, okay? And that is just the political shadow around this case. Because it seems to me that few things are indisputable. One is that, right or wrong, it is true that public sector unions form the backbone of the Democratic party. And, right or wrong, it’s true that the Court, or some members of this Court, look at these cases in starkly political and ideological terms.

I want to play you a little colloquy from Harris v. Quinn. This is the case we talked about where we thought they were poised to overrule Abood and they didn’t. But here’s Justice Alito in a colloquy with Solicitor General Don Verrilli talking about this case.

Justice Alito: I thought the situation was that Governor Blagojevich got a huge campaign contribution from the union, and virtually as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers.

That’s the sequence, is that correct?

Donald Verrilli: Well, I think that the issue before the Court is the constitutionality of the statute that was enacted subsequent to that by a large bipartisan majority. And I don’t think it would be appropriate to look behind the legislature’s action to consider and try to evaluate its motives.

Lithwick: Sam, isn’t this at the end of the day just a complete brass knuckle politics case about either empowering or disempowering the unions, and right versus left, and the Democratic Party versus the Republican Party, and all that falls out from there?

Bagenstos: Well, look. I mean, obviously the folks who have brought this case, which is the latest in a long line of cases, seem to have that motivation behind this case. I mean, you know, it’s no secret that in this country public employee unions have tended to support more progressive candidates.

They have tended to be the vehicle by which we have created and maintained a middle class and a professional class, particularly for minorities and women in this country. And there are folks who have been attacking public employee unions and the union movement and using these cases as a vehicle to do that. Now, you know, if the question you’re asking me is, is that going to factor into the Court’s decision, I think that the Court ought to pull back and see that there’s a lot more at stake here than a political fight.

I mean, what’s going on here is really about whether not just workers can get together and work together to negotiate with their employers, in the public as well as the private sector, but also whether employers in the public sector can reap the benefits of dealing with the kinds of representatives of workers that they’ve been able to deal with, which has given them great benefits.

But constitutional law always has politics surrounding it. And it’s not surprising that people would be focusing on those issues here.

Lithwick: Sam Bagenstos teaches law at Michigan. He frequently litigates in civil rights and federalism cases at the high Court, and he filed an amicus brief in this case on behalf of cities and counties that engage in collective bargaining.

Sam, it is a pleasure to have you on the show. Thank you for being here.

Bagenstos: Well, thank you.

Lithwick: And that is going to do it for this episode of Amicus. We are eager to hear your thoughts and to get your questions and suggestions for future shows. Our email is amicus@slate.com, and we really love your letters. We’ve also loved reading the reviews of Amicus that you all leave on our iTunes page.

If you like this podcast and haven’t already said so on iTunes, well, isn’t the time now? Those comments are a huge help in making Amicus more visible to folks not already familiar with this show. To leave your own review, just search Amicus in the iTunes store and click the ratings and reviews tab. If you’ve missed any of our past shows, you can always find them all at slate.com/amicus. We also post transcripts there, but you have to be a Slate Plus member to access them, and you got to wait a few days for them to go up.

If you’re not a member, you can sign up for a free trial membership to Slate Plus at slate.com/amicusplus. Thank you as always to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field. Andy Bowers is our executive producer. And thank you to Oyez, which provided this week’s excerpts from the Supreme Court’s public sessions. Oyez is a free law project at the Chicago Kent College of Law, part of the Illinois Institute of Technology. You will find it at oyez.org.

Amicus is part of the Panoply network. Check out our whole roster of podcasts at itunes.com/panoply. I’m Dahlia Lithwick. We’ll be back with you soon for another edition of Amicus.