Winning a Unanimous High Court Decision While Gaining Nothing

The nine justices of the Supreme Court of the United States issued their ruling in Davenport v. Washington Education Association a week ago Thursday -- one of the most highly anticipated decisions of the term.  And, according to veteran High Court reporter Tony Mauro of the Legal Times, the ruling "handed a significant defeat to public-employee unions in their battle to continue collecting fees from nonmembers."  Reading Mauro's lead, you might think the justices -- led by Antonin Scalia, who wrote (as Mauro highlights) for "a unanimous Court" -- really stuck it to the labor unions.

Then again, you might have been on the West Coast, reading the morning-after report by another veteran Supreme Court correspondent, David Savage of the Los Angeles Times.  At the end of his story, Savage quotes the General Counsel of the National Education Association for reaction of the teachers union to the Supreme smack down.  "It is rare that I can honestly say that we are pleased with a unanimous Supreme Court decision reversing our win in the court below, but this is one of those occasions," Bob Chanin said.  Why is the top lawyer for the "nation's largest teachers union" so happy with a landslide legal loss?  Well, as the union explained in the aftermath, the ruling "will have little or no practical impact."

Unfortunately, the union got that right.  The decision the nine justices handed down won't really affect anyone going forward -- the public employees have to keep paying and the union can keep collecting.

The case really could have been important.  At issue was the practice in Washington, and many other states, of forcing public employees to contribute to unions under the theory that the employees should not be able to "free ride" and reap collective bargaining benefits without paying the monetary costs imposed on the union.  Under normal circumstances, those costs are paid by the dues-paying membership of the union that freely chooses to join.  But, to avoid the "free rider" problem, Washington has a law that basically says never mind whether the public employees want to join, they have to pay anyway.

This led to another problem.  Collective bargaining over wages, hours, and benefits isn't the only thing unions do; they also remain heavy hitters in the political ballgame.  So, by forcing the public employees to contribute to the union, the state was also essentially coercing political contributions.  To fix this, Washington's voters passed an initiative that a union had to get "affirmative authoriz[ation]" from each paying public employee before the union could keep and spend any portion of the compelled fee on politics.  That seemed simple enough, except the union claimed the hurdle of getting such approval violated its First Amendment rights.  Surprisingly, the Washington Supreme Court actually agreed.

Thus, the question asked of the Supreme Court of the United States was whether the unions could be required to get "opt-in" approval from the public employees before spending their compelled fees on politics.  The unequivocal and unanimous answer was "Yes."  Indeed, as Justice Scalia wrote, "The notion that this modest limitation upon [the union's] extraordinary benefit [of receiving compelled fees] ... is, to say the least, counter-intuitive."

The Court's sentiment was correct, but by then everyone had lost sight of the foul ball the union had hit.  The question should have been why the union was allowed to compel payments for politics from public employees in the first place, never mind whether some of them later gave their okay.  And, for that matter, why should the state be in the business of not only condoning such action but also mandating it?  As the Center for Individual Freedom pointed out in its friend-of-the-court brief -- filed with the Cato Institute and the Reason Foundation -- the real wrong here was that the union was allowed to collect any part of the compelled fee for politics at all.

Perhaps in their quest for unanimity, or perhaps because the Washington law was changed while the lawsuit was pending, the justices never addressed that much more fundamental and important problem.  As a result, the winners won nothing, and the losers lost even less.  The public employees still have no choice but to pay, and the union retains its entitlement to collect.  For the unions, such a loss was a good day in court, indeed.