Calling upon the Supreme Court to apply “exacting scrutiny” to the fair-share provisions at issue in Friedrichs, the petitioners contend that the respondents’ invocation of the “less-than-exacting” balancing test set forth in Pickering v. Board of Education is erroneous, as that test applies “only when employers restrict their employees’ words to manage the workplace” (emphasis added). The petitioners insist that the present facts are more similar to those presented in cases such as Elrod v. Burns and Rutan v. Republican Party of Illinois, where “employment [wa]s conditioned on supporting advocacy groups.” (For some analysis of how Rutan might bear on the Court’s eventual decision in Friedrichs, see here and here.) And under the higher standard applied in Elrod and Rutan, the petitioners conclude that fair-share fees cannot survive.
Yet even under Pickering, the petitioners claim that California’s fair-share “regime would fail.” They argue that where, as here, the speech restrictions are “widespread,” the state faces a higher burden that it cannot meet: it must “show that the ‘interests’ of ‘a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s “necessary impact on the actual operation” of the Government'” (citing United States v. Nat’l Treasury Emps. Union). They further contend that “no employment-based deference is due to California’s regime” because it is California’s legislature, rather than the petitioners’ direct employers, e.g., school districts, that impose the agency fees. Nor, say the petitioners, may agency fees be shielded from First Amendment scrutiny on the grounds either that bargaining speech is not protected, or that agency fees are merely “incidental to a non-speech association.”
The petitioners then go on to assail several of the other arguments raised in the respondents’ respective briefs, including the state’s interest in labor peace (pp. 16–19), concern for the effects of free riding (p. 20), and the burden imposed by the duty of fair representation (pp. 20–22).
As for the lack of record, the petitioners observe that the “Court has made many other important decisions on the basis of allegations in contexts identical to this one,” including in Abood. They also note that if the respondents wish to dispute a material fact, “they are welcome to litigate it on remand.”
The petitioners also attempt to dispose of the respondents’ arguments regarding stare decisis by arguing that the Supreme Court has never “deferr[ed] to prior precedent that erroneously eradicated a fundamental right.” Furthermore, the petitioners suggest, upholding Abood would be more disruptive to First Amendment doctrine than overturning it, and invalidating agency fees would have minimal impact on states’ public employment schemes.
Finally, with regard to the opt-out vs. opt-in question, the petitioners seek to distinguish cases where “individuals . . . have to affirmatively invoke constitutional rights” by insisting that those cases involved scenarios where the state “ha[d] no reason to suppose the recipient objects to the requested benefit.” In contrast, they argue, this case involves a scenario where a state is taking something that its employees presumably want to retain, i.e., money, and so an opt-out arrangement is impermissible.
Again, the reply brief is available in full here. Oral argument, as previously noted, is scheduled for Monday, January 11, 2016. The California Attorney General’s office (15 minutes), the union respondents (15 minutes), and U.S. Solicitor General Donald Verrilli (10 minutes) will argue on behalf of respondents.