Thursday, September 28, 2017

Abood back on the SCOTUS chopping block

SCOTUS was expected to finally pull the trigger and overrule Abood v. Detroit Bd. of Ed. last year in Friedrichs v. California Teachers Ass'n. The setup:
Abood recognized that compulsory public union dues could violate the First Amendment for certain ideological or political speech... but allowed the compulsory fees for collective bargaining. I'll broadly generalize the argument in Friedrichs as: Any time a public union is negotiating with the state, it is engaging in political speech; and forcing people to pay fees to support that activity violates their First Amendment rights. In other words, the carve-out for collective bargaining in Abood should be ruled unconstitutional.
Everyone expected Abood to fall last year . . . but, then, Justice Scalia died. The end result was an even split on an 8-member Supreme Court, which meant that Abood lived to see another day.

It certainly looks like its days are numbered though. This morning, the Supreme Court granted certiorari in Janus v. AFSCME, addressing the issue:
Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.
It will presumably all come down to Justice Gorsuch. If I were a betting man, I'd start playing taps about now.