Justice Clarence Thomas stayed mum, as usual, but all eight of his colleagues got into the act two weeks ago when the Supreme Court heard argument in the case of a teachers union. When oral argument ended at noon, most observers probably thought the union's luck had run out with the clock, but these things are tough to call.
The facts are not seriously in dispute. In the state of Washington, 70,000 public school employees work under an agency shop contract. All but 3,500 of them belong to the Washington Education Association (WEA). The 3,500 non-members, by law, must pay the union a fee equal to their share of the demonstrable costs of collective bargaining. They are entitled to a rebate equal to the union's per capita outlays for other, non-chargeable, expenditures.
The system sounds simple, and in theory it is. In practice, the WEA is understandably unwilling to disgorge a single penny it has collected from the "fee payers." These are the scabs whom willy-nilly the union must represent. Thus, for a non-union teacher to "opt out" of a non-germane outlay -- say, for the cost of soft drinks at a union picnic -- the union lawyers have made a rebate procedure as difficult as they can devise. The rebates, per capita, are penny-ante. Between 1996 and 2000 they ranged only from $44 to $76 a year. In principle, they're large.
Seven years ago the free-spirited Evergreen Freedom Foundation, the National Right to Work Legal Foundation and the Washington State Public Disclosure Commission combined in suits against the union. The plaintiffs won in a trial court, where Judge Gary R. Tabor hit the WEA with a $600,000 judgment. In March of last year, the free spirits lost in the state Supreme Court. Their appeal followed to the U.S. Supreme Court.
The case was argued Jan. 10 before Chief Justice John Roberts and his colleagues. It was not a great argument, but it was a good argument. Robert M. McKenna, the Washington state attorney general, was joined by U.S. Solicitor General Paul Clement on behalf of the non-union plaintiffs. John M. West of Washington, D.C., representing the union, argued vigorously that the "opt out" procedure unconstitutionally burdens the union's First Amendment right to engage in political advocacy.
Justice Anthony Kennedy asked about the First Amendment rights of non-union teachers. West said these teachers "certainly have a First Amendment right not to be compelled to finance political, ideological and other non-germane expenditures over their objection." Their rights, he insisted, are "fully protected." Kennedy nodded agreeably.
West continued: "When there is the availability of a ready means for opting out of the participation in financing these causes, there is no compelled speech."
Kennedy stopped nodding. He seemed to be wondering how "ready" are these "ready means" in practice, but he let it go. After a few minutes, he returned with another question: "You want us to consider this case as if the First Amendment rights of non-union members were not involved?"
"Absolutely not," West insisted. Non-members have an "absolute right" to prevent the use of their funds for any kind of political speech "simply by sending in a letter."
Justice John Paul Stevens was openly skeptical: "So it's a First Amendment right that is waived by failing to make a timely objection?" It's not that a right is waived, said West, but Stevens persisted: "It's gone under your theory."
In the concluding minutes of oral argument, Justice Samuel Alito joined in expressing concern for the rights of teachers who have chosen not to join the union: "Isn't it overwhelmingly likely that if you spoke to them and you said, 'Would you like to give money to the union to spend on elections,' they would say no?"
"I absolutely disagree with you," said West. "It's not asking them to make a contribution. It's asking them, Is it OK with you if your money is used for this purpose?"
Alito asked, "What's the difference between asking, 'Would you like to make a contribution," and 'Would you like to allow us to use (your) money that we possess for our purposes rather than returning it to you'?"
"Well," said West, "whether there is a difference or not, the point is the union is using this money for purposes that it has every reason to believe are in the interest of the vast majority of teachers."
Roberts: "Surely they get to make that decision, don't they?"
Counsel's response appeared to be "yes and no," an answer that earlier provoked laughter in the courtroom. Justice Kilpatrick, meaning me, left the press benches thinking that the union's counsel had done his best -- but his best wasn't quite good enough.