Trump-Era Supreme Court a Threat to Public Sector Unions?

By Kevin McGowan

Nov. 14 — A Trump-era U.S. Supreme Court “almost certainly” would rule that public employee unions can’t compel nonunion workers to pay fees to support collective bargaining, lawyer Thomas Goldstein said Nov. 11.

After Justice Antonin Scalia died in February, the court deadlocked 4-4 on a First Amendment challenge by a group of California school employees who urged the justices to overturn an almost 40-year precedent allowing public sector unions to collect “agency fees” from employees who don’t join the union.

The effect was to leave in place Abood v. Detroit Board of Education, the 1977 decision that holds unions don’t violate the constitutional rights of nonmembers if they charge them for the costs of collective bargaining and contract administration but don’t force them to contribute to union political activities.

But once President-elect Donald Trump (R) nominates a new justice to fill Scalia’s seat—and the Senate confirms the nominee— Abood’s days are numbered, said Goldstein, a veteran Supreme Court practitioner who is also co-founder and publisher of SCOTUSblog.

More cases are percolating in the lower federal courts that raise the same First Amendment free speech and freedom of association arguments posed by the California teachers who opposed paying any fees to the California Teachers Association.

A court with a ninth justice who’s a Trump appointee will take one of those cases for review and the new conservative majority will complete the work it almost accomplished in Friedrichs v. California Teachers Association, Goldstein said.

A reversal of Abood will have “downstream effects on all public employee unions,” said Goldstein, a partner in Goldstein & Russell in Bethesda, Md.

“The broader question is what happens to these unions in general and how much of a free rider question there will really be” once they can’t collect agency fees, Goldstein said.

Public employee unions have survived in some right-to-work states where they already are barred from collecting fees from nonmembers.

So “it’s an open question” about “how catastrophic” a decision reversing Abood would be for public sector unions, Goldstein said.

But “it’s obviously a big question” and one that a Supreme Court ruling very likely could pose within the next few years, he said.

Goldstein spoke at the American Bar Association Labor and Employment Law Section’s annual meeting in Chicago.

Some Issues Could Be Stymied

Three petitions for Supreme Court review currently are pending that raise the issue of whether employment arbitration agreements that include waivers of employees’ ability to pursue class actions violate the National Labor Relations Act.

The National Labor Relations Board in D.R. Horton Inc. held arbitration pacts containing class action waivers violate the NLRA because they infringe workers’ rights to engage in concerted activities to protect their rights.

Federal appeals courts have split on whether to accept the NLRB’s position and the betting was that the Supreme Court would accept review and resolve the statutory interpretation issue, Goldstein said.

It was shaping up as potentially one of the most significant labor and employment decisions in recent terms, he said.

But the Trump administration’s appointment of a new U.S. solicitor general, the Justice Department lawyer who represents federal agencies before the Supreme Court, might take the air out of the balloon.

It’s quite possible a Trump administration solicitor general, who reports to the attorney general and ultimately the president, wouldn’t support the NLRB’s position, Goldstein said.

If that’s the case, the Supreme Court could lose interest in review if there’s no administration advocate for the NLRB’s position.

“So this is one of several cases in which the solicitor general is going to have to confront how much to change the administration’s position,” Goldstein said. “My guess is that the administration probably will suggest these cases be remanded to their respective appeals courts for reconsideration in light of whatever position the government starts to articulate.”

Chances of a Supreme Court ruling are diminished because the result “depends so much on deference to the administration’s interpretation of the statute, which is now poised potentially to change,” he said.

Remand on Church Plan Exemption?

Three pending petitions from church-affiliated hospitals asking the high court to resolve the meaning of a “church plan exemption” in the Employee Retirement Income Security Act could meet a similar fate, Goldstein said.

Federal appeals courts generally have ruled the act’s exemption covers only pension plans actually started by churches and doesn’t reach those begun by church-affiliated organizations, such as hospitals that may have hundreds or thousands of employees.

But a Trump administration solicitor general might change the government’s interpretation, taking a broader view of whether religiously affiliated organizations qualify for the ERISA exemption, Goldstein said.

The new administration’s recommendation, and the Supreme Court’s decision, might be to remand theses cases to their respective appeals courts for reconsideration too, he said.

Transgender Case Could Be Curtailed

The court already has granted review of a Virginia county school district’s challenge to a federal appeals court ruling that the district might have to allow a male transgender student to use the boys’ bathroom at school.

The issue is whether a court must defer to the U.S. Department of Education’s interpretation of sex discrimination under Title IX of the Education Amendments of 1972. The education department takes the position that Title IX means a transgender student can’t be denied access to the bathroom consistent with his gender identity.

This case could “blow up” in the Trump administration because it involves deference to a federal agency’s interpretation and the new administration might take a different view of Title IX, Goldstein said.

If a new solicitor general declines to defend the education department’s current interpretation, this case could peter out and also result in a remand to the appeals court, he said.

No Court Expansion of LGBT Rights

The court is unlikely to reverse its 2015 decision recognizing same-sex marriage as a constitutional right, Goldstein said.

Same-sex marriage has become “just too embedded” in “our social structure” for the court in the Trump administration to reverse course, he said.

But the Trump administration could be more sympathetic to First Amendment speech or religion claims by vendors or others who say they are being forced to support same-sex marriage in conflict with their beliefs, he said.

“I think the expansion of same-sex rights” in the courts “is likely to be slowed considerably,” Goldstein said.

To contact the reporter on this story: Kevin McGowan in Chicago at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at

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