WASHINGTON — The Supreme Court seemed poised on Monday to deliver a severe blow to organized labor.
The justices appeared divided along familiar lines during an extended argument over whether government workers who choose not to join unions may nonetheless be required to help pay for collective bargaining. The court's conservative majority appeared ready to say that such compelled financial support violates the First Amendment
Collective bargaining, Justice Anthony M. Kennedy said, is inherently political when the government is the employer, and issues like merit pay, promotions and classroom size are subject to negotiation.
The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile Monday.
"The problem is that everything that is bargained for with the government is within the political sphere," he said.
The court's four liberal members were on the defensive, asking questions about whether there is good reason to overturn a 1977 precedent allowing the fees and potentially unraveling tens of thousands of collective bargaining agreements. They added that a ruling against the unions could affect compelled fees paid to bar associations by lawyers and to public universities by students.
The case was brought by 10 California teachers who said they were being forced to subsidize activities with which they disagree.
Should the teachers' argument prevail, public-sector unions across the nation, already under political pressure, could lose tens of millions of dollars and find their effectiveness diminished.
Unions say the teachers' First Amendment argument is a ruse. Nonmembers are already entitled to refunds of payments spent on political activities like advertising to support a political candidate. Collective bargaining is different, the unions say, adding that the plaintiffs are seeking to reap the benefits of such bargaining without paying their fair share of the cost.
The larger threat, the unions and their supporters say, is that a decision in the plaintiffs favor would encourage many workers who are perfectly happy with the work of their unions to make the economically rational decision to opt out of paying for it.
Limiting the power of public unions has long been a goal of conservative groups. Even before Monday's argument, they had reason to be hopeful that their side would prevail in the case, Friedrichs v. California Teachers Association, No. 14-915.
In 2014, the court stopped just short of overruling a foundational 1977 decision and declaring that government workers who choose not to join unions may not be forced to pay fees in lieu of dues.
In the 1977 decision, Abood v. Detroit Board of Education, the Supreme Court made a distinction between two kinds of compelled payments. Forcing nonmembers to pay for a union's political activities violated the First Amendment, the court said. But it was constitutional, the court added, to require nonmembers to help pay for the union's collective bargaining efforts to prevent freeloading and ensure "labor peace."
The challengers in the new case say the distinction is untenable and unworkable, and they asked the justices to overrule Abood and bar both kinds of compelled payments.
Under California law, public employees who choose not to join unions must pay a "fair share service fee," also known as an "agency fee," typically equivalent to members' dues. The fees, the law says, are meant to pay for collective bargaining activities, including "the cost of lobbying activities."
More than 20 states have similar laws. In a brief in the case, Kamala D. Harris, California's attorney general, said her state's law was good policy and constitutional.
"Mandatory agency fees ensure that all employees in a particular bargaining unit pay a fair share of the cost of the representation," she wrote. "They prevent the unfairness and conflict that could arise were only part of the work force to support representation activities that, by law, must advance and protect the interests of every employee."
The teachers challenging the requirement say that collective bargaining is a political activity when the employer is the government and that it violates the First Amendment to make them pay for it.
"In this era of broken municipal budgets and a national crisis in public education," a petition by the teachers said, "it is difficult to imagine more politically charged issues than how much money strapped local governments should devote to public employees, or what policies public schools should adopt to best educate children. Yet California compels petitioners to fund a very specific point of view on these pressing public questions."
Harris responded that the challengers' arguments were far too sweeping.
"Negotiations addressing routine employment matters — procedures for taking leave, for example, or the condition of faculty lounges, or the method for processing employee grievances — are not 'political'" in the sense the Supreme Court has used the word in other First Amendment settings, she wrote.