well your argument this morning in case fourteen nine fifteen friedrichs versus the california teachers association at all mr carver mr chief justice and may please the court every year petitioners are required to provide significant support to a group that advocates in india logical viewpoint which they oppose and do not wish to subsume abood authorization of this clear first amendment violation should be overturned both to end this ongoing representatives so that nobody i think that the bargaining table yes that's fine with us our objection of course is being forced to subsidize that exclusive representative the fact that they are exclusive representative impinges on my clients because it disables them from individually negotiating with the school board but that is justified by the need for an exclusive representative and that is why indeed requiring agency fees in the collective bargaining context is less justified than for example requiring agency fees to support union lobby in the collective bargaining context we are required to free ride on the union because they are the exclusive represent representative and we don't have our own vehicle so the free rider justification is far weaker in the collective bargaining context than it is in the union lobby context is that carbon is it ok to force somebody to contribute to that he does believe in i wouldn't think driving force republicans to give contribution etc i'm thinking could you act alone let's say the national political parties are in trouble so they enact a law that says we'll all members of the republican party if you want to be a member you have to contribute so much money no is that ok no it's not and that's because the bedrock principle is harris made clear is not whether or not you though didley oppose what they're saying it's because you don't wish to subsidize exactly so i don't know why you're putting so much on the fact that you're your client suppose it really wouldn't know and i don't i did want to point out that that's the reason that they've brought this lawsuit but but no you're thousand percent right your honor if you were to prevail what would happen with private employers and a state which said that there should be  a union shop nothing run big for two because because the first amendment doesn't apply to private employers and because in back the court established the rules for agency shops based on the statute without any first i think that is correct as a basic distinction is true though assuming that you have a state statute which allows an agency shop or a quote close shop that that is a state participation in the very kind of career sed membership and career speech that you're objecting to well i don't think kandor think that that would create state action on the courts modern jurisprudence such as moose lodge where it turns on who is making the decision that is being objected to in your hypothetical would be the private employer but that aside as the court made clear in harris even if it did reach the first amendment there's a there's a serious difference between st you can have agency shops but the agency fees can only go to things that are germane to collective bargain in other words they impose the rule in the private sector as a matter of statutory interpretation and nothing the court says about when you don't have any greater constraints under the first amendment but one of the points of our public employee case is generally mr carven essentially to ensure that when the government acts as an employer that the government be put in the same position as a private employer another words that the various constraints that would constrain the government when it's act in a sovereign full in a way in a different and lesser set of constraints apply that are meant to sensually to ensure that the government doesn't use its position as leverage over things that wants to be able to control what the government can do the same things that a private employer can and so why doesn't this fall within that category of things in other words you just said private employer can decide to do this that's not a constitutional problem so too with a government employer for two reasons  can first i must respectfully disagree with the premise none of the court's first amendment jurisprudence acquits says public employees of the same rights as private employers private employers or the constitution can discriminate on the basis of political affiliation they could even discriminate on the basis of sexual orientation but nobody thinks that public employers can do that plus which even under pickering for example the deferential review you refer into imposes greater constraints on public employees than private employer but there's a lesser set of constraints and the lesser set is basically to draw a line and to ensure that the government doesn't use its position as employer to do things properly to do but that the government when it's acting as an employer with respect to its employee workforce really ought to be able to do the same things that a private employer can the courts government is employer speech and first amendment draw a clear distinction between restricting employee speech like going to the pickering line of cases where there is deferential review and circumstances such as this where they do leverage the employment relationship to coerce the employer to between restricting speech and subsidizing speech and i had always thought that these were two sides of the same coin that compelled speech is is is no less and no greater an offense than compelled silence own yes certainly in terms of petitioners rights but your honor the scrutiny given to the speech be subsidized doesn't dictate the level of speak of speech scrutiny given to the compulsion to speak for example the you can stop unions from making political contributions under the case law but that hardly suggestion could compel a nonmember to subsidize the unions contributions you can stop public employees under the hatch act from engaging in basic political participation but that hardly suggest that you could require a nonmember to subsidize political activity so there's always been a clear distinction in the case law between those two things precisely because subsidization is an entirely different infringement than restricting employees speech restricting employee speech is an inherent part of the employment relationship the employer has to be able to restrict employee speech as it's called is frequently noted you couldn't have a workplace plus which would give deferential review because we don't want the federal judiciary micromanaging the literally hundreds of thousands of personnel decisions that public employers make every day and neither of those concerns is present when you have a catacomb oracle rule that requires one set of employees to subsidize an outside advocacy group like a political party or like a union and that's because you're not involved in the federal judiciary and personal decisions and it's certainly not an inherent of the employment relationship it is to use your phrase leverage in the employment relationship to require something that the state could require the riaa are we treating government differently than a private employer you just earlier said and i think our our faces are replete with the point that as an employer the government can already restrict speech which is i think a higher problem than subsidi we've already permitted subsidization of our associations of government programs we've permitted assessments on a lot of different levels so why can't the government as employer create a state when recognizes the exclusive bargaining representative a union assumes an official position in the operational structure of a school so it seems to me that and california tells the union what topics it can negotiate on if it requires them to to do training and in the end it accepts their recommendations with respect to cope to the issues of employment at its own will meaning the state is creating the union as part of the employment training and other responsibilities just sort of my think it's important to draw a distinction between having an official position they certainly do their the exclusive representative of the employees and suggesting that they are somehow state actors if they were state actors the state legislature could tell the unions not to advocate pay raise you could tell them not to be able to do that i don't get it it tells them what they can they give the state legislature has given them the right to do that run what would take away from their right to say no you can't bargain on these particular topics of first men in other words the scope of collective bargaining is obviously something the state can dictate it could never dictate the union's position on collective absolutely it will then that's my point but of course if the if they were state officials subordinate to the state legislature the state legislature could tell them don't advocate pay raises don't advocate this for health benefit well so you would say don't advocate this with respect to the state legislature but they could say that's not going to be the subject of discussion at the bargaining table those are two different things altogether again we need to distinguish being collective bargaining in law and shaklee exactly and here's the point they couldn't c bargain is unique because it requires public officials to meet negotiate in good faith and mediate any impasses with unions none of that exists in lobbying for example state legislators could close their door window even even with what even bargaining in in this instance subsumes includes this wide ranging effort on the part of the union to have a public relations campaign in favor of principles that some of its members of that some teachers strongly object to exactly your honor and my point in response to justice so to my ear would be if they were really state officials subject to subordination by the state legislature the state legislature could say just like they could say to their own employees don't run public relations campaigns adverse to the government and in the key point is i think they say you can abandon you can ban collective bargaining but you can't ban lobby but it's important to focus on why that is so the reason that is so is because we're imposing an obligation on public officials and clipped the bargain that exists nowhere else to negotiate with in good faith with the union but they couldn't tell the union don't advocate to the school board pay raises and things like that they can simply revoke collective bargaining by saying just like lob let the state legislature the school board doesn't have to listen if the distinction is between what public officials have to meet and negotiate on but that doesn't translate  ability to tell the union what to say or do and i'm a sinner and the spawn of it would grieve with that but the teachers can lobby there's nothing wrong with the teacher speaking and that's the whole point the teachers can lobby they can go to the state legislature just like the union just like the union can and yet they can't be forced to subsidize the unions live so what is your leverage is so with respect to collective bargaining they can't negotiate so so the free rider rash now is much weaker in the collective bargaining context because the teachers right to negotiate with the public officials that the union is talking to is it is extinguished in those circumstances even though in lobbying they can engage in their own lobbying but we don't allow agency fees for lobby mr carbon you come here of course with a heavy burden that's always true in cases where somebody asks us to overrule a decision it seems to be particularly true here this is a case in which there are tens of thousands of contracts with these provisions those contracts affect millions of employees maybe as high as ten million employees so what special justification are you offering there there are two special justifications justice kagan the first one is that this abood erroneous lee denies a fundamental way doesn't expand a fundamental right and is the court made clear again to the right of the citizen not to be subjected to unconstitutional which treatment outweighs any reliance or predictability interest of story to see if i should say this a second in your excuse me you say that a lot in your briefs but i guess i found it hard to understand that the idea that every time that we deny a claim of right whether it's the first amendment or the fourth amendment or the fourteenth amendment that that the nihil of the claim would not have any story decisis effect i mean we do that constantly we do that tens of times every year what you are asking what if the court concludes that a bug was erroneous what special justification yes is your answer is essentially you don't need a special justification if that initial decision improperly tonight claim of right right i guess i'm saying that i find that an extremely difficult concept to understand it would take away story decisis effect from numerous i mean just a hundred stallions of our decisions but justice kagan with respect  admission of evidence that was seized on unlawfully and of the fourth man i read a lot of criticism of those things in the paper and it seems to me you could get people who are judges who are up here who thought that the fourth amendment should be rea cases where this court has denied individual rights and you're saying all those cases are now free of any starry decisis inhibition is that the point or is it just labor union no no  your honor in fact the fourth amendment is not a hypothetical that was what can't involve gant is the one that i was quoting when it said the right to constitutional treatment outweighs the reliance interests of storage sizes but if i could move to my so what about the eighth amendment that's a good one there is an individual right something perhaps against capital punishment the court has consistently ruled against it so i guess if that's ever considered again under your view the court would give no weight to star the court was convinced that capital punishment was clearly outlawed by the constitute i think it would be very strange to tell people were being executed in the future that even though this is an unconstitutional execution we're contracts perhaps thousands of contracts would they suddenly be endangered were they all be void could you could you address that there is no reliance interest these contracts will operate precisely the same day after a boot is over ruled as they would before  relief it doesn't apply retroactively and to get to the point all of the benefits would mean precisely the same this is simply the union's future bargaining efforts would no longer be subject to unwilling agency contracts would read differently the unions would have gotten different things if that provision had not been there so you're essentially saying that the exact same contract should go forward notwithstanding that the union has given up things or has not gotten things because the union the agency fee provision is in the contract but no again i must respectfully disagree as a factual matter the union did not go in and say we would have asked for a ten percent increase but now we're going to sell out our members rights a nine percent increase so we can line our own pockets with agency for the union and they're not for aside from from the many ways of dealing with their need for adequate funding in order to perform their collective responsibility collective bargain funding because they don't get any funding from the employer they get it from their members so no position they took in collective bargain music all affected by the completely that isn't would it be illegal for the government mint us employer or government to fund the union that's an i thought about the two sides sort of meyer it's a very tricky question under johan's for example the government can engage in a lot of speech that it can't compel citizens to engage in the government for example can subsidize plane high parenthood but it could require citizens to subsidize planned parenthood so when we're in that sense yes the government would have far greater leeway that said you can have a way or something to negotiate which was right now the union participates in the grievance procedure and it pay certain expenses for that it could have said that the employer were no longer getting enough money to be the of every employee right so now we want you to fund certain things where i could very well have been part of the negotiation not in california for two reasons one is the state statute requires agency fees the employer couldn't have done anything with respect to agency fees that's all decided us that you're isolating i'm not assuming the state of the law as it exists now i'm assuming that we were due to undue and say they can't charge an agency run are a california is going to have to respond somehow it's now breaching the agreement that had with the union it's going to have to come to some sort of accommodation right and they would excise  fees part of the county even if they did could they then decide to fund the union but that's a separate question if if they wanted to go ahead and funding union as i say they've got some discretion to do it i think the one area the government doesn't have the for that contribution right now is the point i was trying to get to which is agency fees don't go just to collective bargaining as we know they also go to political activity and i don't think the government could fund political activity in a viewpoint american society and there's no way the public employer tickly because agency fees as a matter of statute could all of a sudden say sure we're going to take our taxpayer dollars and start giving money to use because they've always been funded through voluntary contributions if they did become recipients of federal or state funds that would impose all kinds of restrictions on their speech and other activities that the unions presumably would never have asked for wholly apart from any funding shortfall of a different somewhat different subject but it and i don't know how to get you to focus on this exactly because i think there are good arguments on your side and there are good arguments on the other side when you go into this it was in my view a kind of compromise and forty years ago but it was forty years ago it was forty years ago i mean maybe marbury vs madison was wrong there are people who argue certain aspects were and the concerns  i have in terms of workability are not so much of the tales i guess something would work out in the labor area it would certainly affect the bar it would certainly affect the integrated bar it would certainly affect at least student fees at universities it would require overruling a host of other cases i think at least two or three that i can find and that's quite a big deal it's certain so so what is it in your mind that you can say from the point of view of this court's role in this society in that if of course we can overrule a compromise that was worked out over forty years and has lasted reasonably well not perfectly i guess people could over a rule are decisions just as easily i've had a few dissents in those dissents i think i'm right and others are wrong and they think i'm wrong and they're right are right there are a lot of people who think that you see rhyme going i'd like you to talk for a minute because it is a matter of considerable concern to me even when i'm on the other side of something just i mean to use you start overruling things what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot and i think you put your finger on precisely the same question i think the principal reason to overrule abood is that all of the rationales offered in support booze result directly conflict with other precedent of this court so by overruling the bood you you don't do what you're saying you do just the opposite if i could walk through the list for you the standard of review the new rationale for buddha's it's subject to deferential government his employer review that's country to harris country to knox country to a boot itself which issued pickering analysis the notion that the union's duty somehow justifies agency fees because they've got a duty to represent the nonmembers which we've chatted about that comes from the center in opinion leonard so you'd have to overturn leonard which characterized this argument is turning the courts principles on its head and is wholly unworkable in the name of preserving another precedent the notion that clip the bargaining doesn't involve matters of public concern which has been offered up that's contrary to harris abood itself which said it was dickering which involved basic issues is contract not only to a every aboot case and the harris dissenting opinion even if everyone recognizes there's some first member protection i mean it seems to me i guess we have one disagreement which is how well aboo interest the government's interest as an employer and how that related to an employee speech right and and and basically arguing for a balancing test so really what your argument comes down to is two very recent cases which is harrison not so and there you might say that harrison not skaven to patients that the court was not friendly to abood but those were two extremely recent cases and they were both cases that actually were decided within the abboud framework in the harris case the parties came here and explicitly asked us to overrule that case almost all the briefing was about overruling that case and the court decided not to overrule that case and instead to say that the employees there were and were simply not public employees at all so taken to extremely recent cases which admitted expressed some frustration with the bill but also specifically decided not to will over rule abood i mean just seems like it's it's nothing of the kind that we usually say when we usually say that a president place and i'm trying to abstract from that in a very basic way for this reason i think plessy v ferguson was a case that certainly should have been overruled it certainly should have been overruled because it was basic because it was a right to treat people equally and there were millions of people who were not now you see the level of abstraction i'm working at now if i put that same level of abstraction here i see the following you will go out this door and you will b hundreds of things if not thousands where money will go from your pocket into the hands of people including many government people who will spend it on things you disagree with i don't see anything too basic in the lines you're growing there the second thing is what you said was and it's true employees can say what they want we're talking about six people in a room bargaining about late wages hours and working conditions that's pretty far removed from the heart of the first amendment and pretty close to ordinary physical activity carried on through words regulation if you like so i can't find a basic principle let's there that's erroneous as in these major cases that we have overruled and if you have a response to that i'd like to hear sure as to requiring people to give money to which they don't wish to give thomas jefferson said that was sinful and tyrannical james madison family said requiring three pence is the thing so so it's not at all something that we've invented for example you couldn't require as return makes crystal clear people to give money to a political organization because money is not money when it's supporting speech it is it is association with an advocacy organization and compel fact that hypothetical was completely eliminated by harris which made it quite clear that neither keller nor self worth was in any jeopardy because the rationale of those cases was significantly different than the rationale of a booth those cases with the mr carven those cases say abood is the framework and those cases decide the questions that they decided specifically within that framework a lot of cases cite cases but the question a cite this is the way we look at mandatory fee cases again i must respectfully disagree they do have that in common at that level in generalities but there's a key distinction is as harris itself pointed out between giving money to a bar association and giving money to a union the key thing is that the bar association is a non speech restriction it's like what the court said in the clip income or speech context the initial association has nothing to do with speech there was regulating warriors not advocating on behalf of do things all the time that lawyers disagree when they engage in certain kinds of litigation and not other kinds of litigation they take public policy positions on certain issues and not other pet issues i mean i think it would be impossible to make a distinction along that school or tell or struck down those kinds of activities by bar associations taking positions on federal jurisdiction taking a position on gun control it said they could only spend you think our associations do now nothing that they have that members at the both about to different kinds of bar associations i mean voluntary bar associations get into a lot of those of the picture you're just saying that those bar associations that you're compelled to join as a condition of your practice to not get into the oh absolutely if they required me to join the a b a i would have an absolute first amendment right not to do that because virtually every word out of their mouth i disagree with this requirement i see i see your  will only affect the amount that you need to opt in or opt out on and my short answer no i am running out time is if this regime is upheld that means tomorrow the state of california could say every public employee contributes one percent to the governor's reelection campaign unless they affirmatively opt out of doing so no one thinks realistically that's a voluntary decision to give money there's only one purpose behind that kind of requirement which is to inflate the governor's political war chest just like the only purpose behind this is to through inadvertence and neglect inflate the union's work chest by people who really have not made a voluntary decision to do so unless there are further questions i'd like to manage a public workplace much like a private employer unless we are improperly leveraging the employment role to coerce or suppress citizen speech so let me try to briefly address why i think if we are going to have collective bargaining in the public sector mandatory agency fees can serve important state interests without unduly burdening citizens speech before you get before you get into that can i just ask you a preliminary question that came up earlier in the argument do you think that the california teachers association is an agency of the state of california no i think a a a union that becomes an exclusive representative under the perry case has an official place in the functioning of the school district but it is not it does not become an organ of the state and that's actually a very important point because precisely because of the company union concern what's delicate about this from the state's point of view is that we want if we're going to have collective bargaining we need to have a system where there is one representative that we can deal with and that represented it has to be both a good partner for us from our point of view but also perceived by the employees as representing their interests which is walk we can take it over ahead and well which is why is very important that we not fund that directly and that we not be perceived as controlling the speech of that representative it's hard to visualize this in a pure employer employee relationship when the collective bargain you gleeman itself has to be submitted for public review public comment let's suggest that you're doing more than simply regulating the employment relationship well the public employment context is certainly different from the private context and that's one of the important ways we don't contest but i think the question is before you get to the final legislative approval or what approval stage what kind of system can we have legitimately that will be a workable system both for our employees who overwhelmingly have shown that they want collective bargaining and for the local managers the the actual managers of local governments of school districts were of state agencies who need to have the practical problem of reaching an agreement that will govern their place for a period of time if your employees show overwhelmingly that they want collective bargaining then it seems to me the free rider concern that's been raised is is really in significant with respect i disagree with that because many people can want something in the sense  bargaining we want one union to deal with we want that union to deal with all employees and so we require it to represent all employees fairly whether they supported the union or not they might have supported a rival unions they might be in favor of unionism but they support a different one but once the majority has said this is our representative then that is going to represent all employees that's important then from the employer's point of view that that representative be adequately funded and stable you find this so that they can work with us to work with the employer then is it not true that many teachers are strongly strongly disagree with the union position on teacher tenure on merit pay america promotion on classroom size and you the term is free rider the union basically is making these teachers compelling writers for issues on which they strongly disagree many teachers  think that they are devoted to the future of america the future of our young people and the union is equally devoted to that but the union is absolutely wrong in some of its positions and agency fees require and i understand and correct me if i'm wrong agencies require these require the employees and teachers who disagree with those positions must never less subsidize the union on those very points what i'd like to do is to separate out the important public policy issues which we do not deny cross cut between the public sphere in the realm of citizen speech and the isolated bargaining realm they do crosscut but that does not mean that the two spheres are the same so in the collective bargaining context what the employer needs is to get one agreement with one group of employees to do by having one union that's a democratic process the lawyers get to pick that union and because it's a democratic process almost it's almost guarantee that not everyone will agree with all the positions that are taken by the union that represents the majority of employees from the employer's point of view we need to get a contract is to have one representative that can speak with one voice for all those disparate people now i understand they will be speaking on on delicate issues and the important point here is that outside the context of getting a contract we do not try to suppress at all the wider and rich variety of viewpoints that employees may have as citizens and they can express them in the legislative around they can express them at the workplace just not in the  have public relations programs the newspaper articles on media programs to talk about things like merit pay protecting underperforming teachers and s adjust the current law because the court feels that some of those things are more in the political or legislative sphere than they are in the collective bargaining sphere per se that is more of a latter question and a big question does not require i would not the problem is that everything that is collectively bargained with the government is within the political sphere almost by definition should the government pay higher wages or less or wages should it promote teachers on the basis of seniority or on the basis of perform all of those questions are necessarily political questions that's that's the major argument made by the other side and you're i don't disagree with that but it does not change the fact that as a government we have two things that we're doing one is trying to run a workplace another is trying to run a government in which the debate must be wide open and we would not dream of being able to impose  said you agree with that you agree with that everything they're negotiating over is a public policy question that i don't agree that every issue is a public policy question but i don't want to dispute the fact that many that there are deep employer that does not present a public policy question mileage reimbursement rates or how you're going to have public safety it's all money that's money that's how much money is going to have to be paid to the teachers if you give more mileage expenses that cost more money and the amount of money that's going to be allocated to public education and supposed to public housing welfare benefits that's always a public policy issue which is why i would say i would not try to draw the line by saying that some part of the speech is not a matter of public concern or whatever term you want to use what i would say is that they were trying to run the public workplace we need to have some flexibility because for as employers we're trying to reach workable agreements to govern particular workplaces for particular periods of time and that involves compromise it involves reaching some decisions on some of these issues and many of them are controversial but we need to have concrete decisions with one group of employees represented by one union to do that and as the where does the state of california think the line should be drawn on the provision of california law this is section thirty five forty six b of the california government code says that agency fees may be used for quote the cost of lobbying activities designed to secure advantages in wages hours and other conditions of employment in addition to those secured through meeting and negotiating with the employer is that constitutional i don't know the answer that question i don't think it's the question presented here it's not what the unions here it's not the position that they've taken in this litigation and if there is a need to adjust that line which there might be that would be a question about where to draw the i think there are arguments about why that kind of thing could be considered germane to bargaining but what is most important to the state here would not be preserving that line i don't want to concede it but that is not the fundamental point here what is fundamental is that we need to be able to run our workplaces and that involves presenting someone from the crime the broad debates about public policy which will continue to go on but getting particular contracts and these are not the particular speech restrictions of on my just in excuse me i'm sorry but is there any is there any legal argument or factual basis on which the state of california disagrees with the position of the union many we have aspect i'm trying to sort out we have as you know three respondents here in trying to sort out the different position is there anything in any way in which your presentation disagrees with the unions presentation and in its brief i don't think there's necessarily a fundamental disagreement i think we would emphasize that our interests here are not are primarily interests of employers and coming to practical  decision in the early seventies to adopt this this system and we think that was a legitimate legislative generals who might hear you are arguing with a super thighs with the need of the state to have an efficient system for dealing with its employees and i can agree that dealing with just one union makes everybody's life easier why do you think that the the union would not survive without these  these fees charged to nonmembers of the federal employee unions to do not charge agency fees to nonmembers and they seem to survive indeed they prosper want why is california different the federal situation is different they have very different scope of bargaining i wouldn't say that it's been established that they prosper they have about a thirty percent membership rate and no factual development so there's a presumption in the question posed which is that it can survive but we don't know that factually we don't know that actually the state would prefer not to take that risk and i don't think the constitution requires us or the one making  it is it isn't the job of the potence to show that it you know that it will survive you are the one that say we need to do this because otherwise you won't survive it seems to me the burden is on you to suggest why it's so with you have go in interest with respect or i don't believe that what we need to show is that you would not survive without this from our point of view the question is are we using a technique that the private sector uses widely that is reasonable from the point of view of the employer and that doesn't  burden let me just say for just a moment about the burden that's involved here because i don't want to minimize it but let's remember that there is no personal attribution of this speech here to any individual employee there is no restriction on any individual employee speech as a citizen either in the workplace or out of the workplace all of the speeches workplace related and if it's not and that's a matter of a just it's odd to say that if x is required to pay five hundred dollars for someone to espouse a belief that he doesn't share that he is now free to go out and argue against that that means you have to spend another five hundred dollars so that balance without that makes no sense see what i would say here is i need your honor in this case is very much like self worth because what we have here is something where it is important to the state to have a system in which we are not the speaker because that would defeat the purpose of the system the same way at that point in south we're supposed to have students speak the whole idea about southwards with the public form are you saying that the whole purpose of agency feeds is to have an open public form now i'm saying it is to have a bargaining forum but that is legitimate when we have compel the such compelled association to have that bargaining for and it is also wanted to have user fees that funding thank you mr chief justice and may please the court approved correctly held that states may reasonably insist that nonmembers pay their share of costs for the services provided by a union to the government and to all employees as their exclusive representative overruling abood now would substantially disrupt established first amendment doctrine and labor management systems in nearly half the country let me talk about what a collective bargaining is and how the agreement is struck and how it evolves over time because it's not simply one contract where there might be a severability provision but it is really a system of agreements that are established over time and a body of relationships that build up and if you look at the joint appendix there are several examples of collective bargaining agreements they are very long detailed agreements that include a wide range of services that are negotiated between the union and the government and some of these are monetary many of these are hot button issues to be sure justice kennedy but many of them are also monday issues about health and welfare benefits what times teachers need to show up how long their lunch break can be without having to perform a duty what the policies are for transferring teachers between and among school districts in these are all basic services that require research legal representation conferring and consulting communicating with members trying to ascertain what the positions of all members of the workforce are before the union present suppose of that so convincing the union can convince teachers to join the union well and in fact in california the overwhelming majority of the teachers are in the union and it's only a small percentage that have opted not to but i would go further the union when that is voted for by a majority of the workers and here this court's cases have distinguished between citizen speech where the very teacher who might disagree with the union's position is free to go to and speak publicly about that position and employment speech where this court's cases have been extraordinarily deferential to the government in upholding restrictions on what speech employees may make but philosophically if you use pickering in this case you're committing the error of composition you're comparing a whole group of persons who have their views of coerced or compelled against one person that the pickering is just an applicable on that on ground well justice kennedy i think that it is fair to suppose that the government in deciding whether it's going to establish a relationship with its workers in word to get input is necessarily going to be dealt with a cough any of use unless it comes up with a reasonable system of management to get those views collected and have been represented by an exclusive representative and that is the basic tradeoff that abood recognized and i would note that because different states have chosen based on their history their culture their experiences with the labor management system in the private sector to come up with different results and here i would say that wisconsin and michigan which recently adopted alterations to their public management sector establish this point because on the one hand the legislature in wisconsin decided we're going to do away with public sector agency fees for school teachers and for government workers but we're going to keep it for public safety officers police officers so legislative interest in having agency fees why the firefighters brief in this case explains that many states don't have safety regulations for firefighters and so a lot of these regulations in the coming through the collective bargaining process where firefighters work out negotiated rules to establish what is a safe way to fight a fire and all of that would still survive if the petitioners prevail ugh less your basic argument that if you do away with agencies agency fees the unions are going to collapse and not be in a position to negotiate those safety requirements teach us is the necessity standard has never been the standard when the government is operating as an employer or proprietor it has always been a case of you judge the agency the government's decision on the basis of what is appropriate or reasonable and if you look at it from a vast standard what the firefighters are saying here is that it's actually essential to have agency fees because they're using those fees to benefit all of the workers in the in the unit through getting additional equipment that the county may not be able to afford additional training so that when they're called upon to fight a fire i'm sorry they're getting additional equipment that the county may not be able to right the union members and the nonmembers of the union in the in the unit are putting their money together through the agency process so that the union is supplies or something other than that  because it wants on the other side of the bargaining table a coherent group of people to negotiate for the workers on wages hours working conditions etc now the chief justice said i can understand that argument if the alternative is the union is destroyed his and there's nobody and you say that that argument's good argument is going to buy far trucks and some other things is there anything else that backs up that argument sure and it's important and i'd like you to explain that the flipside is that the state briefs and the city briefs that have been submitted in this court know what happened when the agency fee process didn't occur in new york city for example there were strikes that were occurring all of the time until an agency fees the system was put into place and that enabled the city to better deliver transit services school services and the like so you have both a positive story i don't understand  a just absolutely don't understand why would an agency freeze and they will the city to do things they couldn't do before because it enables all the workers to know they are making a shared sacrifice for the purpose of working together to establish a coherent position with their employer in riyadh say that but doesn't mean anything to me i understand you have a union bargaining in the city says no and you're saying that if there are in force trees to the union the basically brought as a facial challenge is what is in the amicus briefs and cities states school districts hospitals that are management side have supported agency fees because they find it to be a more workable system while i having employees buy into the policies that are being established through the collective bargaining process it sounds to me like your argument cuts exactly the opposite way the problem that's before us is whether or not individuals can be compelled to political views that they disagree with and you're saying well the reason they should be able to because if they do then those political views are going to prevail they're opposed to particular funding that's why they don't want to join the where they don't want to join the union because the union is pushing that when you say you should force them because then the union will prevail contrary to the objective employees know what i'm saying mr chief justice in the states can make rational and reasonable judgments that for their workability of the system they can have an agency process abood recognize the very federalism interests that are at stake here where different states have different experiences and this is an opportunity for the states to draw upon those distinctive experiences in with the positions the union is taking on pay it would be anomalous to suppose that we're going to decide a case of this kind of constitutional import with a leap plaintiff who has said publicly she agrees with the union's positions on when you can you think you can find one employer who doesn't know i think that that's the point is you don't think you can go and i think that there are undoubtedly there are undoubtedly issues in one hundred page collective bargaining agreement in which reasonable police people can say we don't like where the aurukun got struck but the point here is government workability and assessing the reasonableness of the government's using do you think you can i mean obviously one thing that's come up is i know that you're right on this the taylor law was a mess it was strike after strike but what you would like to show is the that approach compared to the assessment of wage hour and working condition related fees that the latter makes an improvement in the coherence of the unions position and therefore there will be fewer strikes that something like that is what you're arguing and i would guess that people would have written articles about that now and if that so but prior i guess the question is are you going to decide a case of this constitutional significance on the basis of a hypothesis based on art michael already or who was a who you want to put information in the record on that point i think that is one of many points that  suppress speech and your decision in car sadi justice kennedy allowed for the suppression of the speech by the prosecutor who would that was in the workplace it didn't apply to merit pay it didn't apply to the protection have about ten of them is it necessary and your adversary says you or one of my colleagues has said you have there at the burton but this is an overturning of a decision on have the burden to demonstrate that the way the system has worked would be unworkable if it were to be if it were to be sustained and justice kennedy back to your point i appreciate that a prosecutor's memo white be  as workplace speech whereas the teacher's position about what size the classroom might be may not seem the same way as workplace speech but from the government's perspective i think you have to assess that on the basis of the reasonable miss of the representative can negotiate their health and welfare benefits their mileage reimbursement a whole set of things are voluntary teacher transfer policy the questions about when teachers have to show up how long their duty breaks duty free breaks are during the course of the day these are all relatively mundane points so i think you would agree with me and there is nothing in the agency process that suppresses the ability of teachers to speak out publicly and even with in the process because the law itself allows f merit pay to be a subject of aurukun ng if a minority of the teachers can convince the majority that this is a position that the teamsters and so on i think you at least agree we're dealing with some sensitive important constitutional issues what is the  the burden on the union that counter weighs against those of simply requiring opt in is opposed to opt out but at least then you you ensure that people are making a conscious decision about supporting the union before they're compelled to do that on the second question presented we think that the decision ought to be affirmed because abood correctly recognized that here where there was basically no burden on the spur some who wanted to opt out majority were talking about more than ninety percent of the people are paying the fees even those that are nontraditional fees under the leonard line to support political activities it's administratively much easier to count a smaller number and the question is whether the suppression of their constitutional rights is such that is to rise to the level of compulsion here we would submit it where there is a one page check box they can send it in they are able and every petition on the other side has successfully opted out of paying wanted to opt out had to send a certified letter within a certain period of time and i suppose somebody who says i don't want to pay this year i don't want to i never want to pay what is the justification for saying that person has to opt out every single year  well let me just say that the perpetual opt out is not an issue in this case and had it been raised it very well might be an acceptable way to do to say i want to opt out until further notice that's not been presented or argued here if it were to be argued are reasons why that might be appropriate but here having an annual process follows this court's hudson decision where the union is required on an annual basis to provide notice of the activities that are charged will a nonstarter so from the perspective of getting notice to the potential objecting member it allows more flexibility then you c then really mr chief justice and may please the court let me begin by summarizing the three fundamental reasons why a buddha should be reaffirmed first in the four decades that a boot has been the law this court's jurisprudence in the area of of employer managing the workforce it should receive recent illness review in order to give it the latitude comparable to that of a private employer to manage its workforce and not exacting scrutiny that applies when government is a sovereign regulating the citizens second in those four decades more than twenty states have enacted and enforce laws that allow the public employers and no states to have the same latitude that congress gave private employers to decide based on workplace needs and local conditions whether agency fee requirements will help them achieve the purposes for which they are for which they adopt collective bargaining and their reliance goes far deeper than those twenty state laws and the thousands of contracts affecting millions of people that are based on those laws in those states the agency for you requirement has worked its way woven its way into the fabric of the relationship between workers and management in the public sphere in most states the unions have taken on such obligations as training and the like funded by agency fees that make the workplace more effective for management as well as more effective for the employees and if you were to take those away you're going to disrupt those long term relationships that have developed over time in the expectations that have developed over time and you can replace them with a different kind of a situation in which the union is going to have a different set of incentives trying to trying to ensure that the maximum number of people are willing to pay union fees and the way that unions are likely to try to do that is through trying to convince employees that you want that they need the union because otherwise management is going to do them harm and i do think that that's a significant problem here for public employe perspective now in a time of budgetary constraints when difficult decisions have to be made and cuts have to be made now is a great benefit to the employer the government is employer to have the union participate in those judgments so that they are perceived as fair as the work by the workforce and so that the union then in effect vouches for management with the workforce and prevents disruption so i do think the alliance interests go very deep here and then the third point i would make is that we're talking about overruling a press and a forty year standing there need to be needs to be a showing of changed circumstances it seems to me now with respect to the question of the wall that agency fee and the role that agency fees play in the process i think is quite important this goes to a point you raised justice scalia would never set an ok sensible has ever said that agency fees are necessary to union survival of food couldn't have said that because one of who ruled as it did have to hartley had been on the books for decades and so with respect to the private sector what congress had said with respect to the private sector is that employers get to choose employers get to decide whether it the agency fee will help them achieve their workplace goals and what the court said in a booed was that public employers ought to have the same kind of choice to respond to workplace needs and local conditions or prior to the fact that a buddhist been around for forty years does it affect your point at all that the main justification for a blue that's being advanced today is one that a blue did not adopt i to pick justification that's what i hear most prominent in the presentations and yet a boo did not even cite pickering i respectfully disagree with that as a technical matter i think did cite pickering and if one looks at the briefs in abboud the parties on both sides were arguing pick it terms of that but in terms of the substantive analysis think it was can't really seriously because the pickering case no but i think it shares all i think we're not what i said at the outset mr chief justice is i think the key point that this court's first amendment law in the public employment context has over time converged with a boot in that the cases generally have recognized that when government is acting as employer it has interests that if government were acting as sovereign regulating the citizenry wouldn't suffice to justify considering the heart of your argument so i do want to ask you a couple of questions about it is it different from the situation here in several respects one was brought out pickering the pickering cases involve the terminations of the discipline of a public employee after a single employee after the employee has made a statement that to which the employer objects this is  applies to a huge category of employees the second is whether restrictions on what employees can say are the same as compelling an employee to make a statement or subsidizing to take so as to as some of the latter you know there are circumstances are there not in which the department of justice could terminate or take an adverse employment action against a d o j employee for something that that employee says as a citizen on a question of public concern back could be done could it not yes are there any circumstances in which the department of justice could compel an employee to make a statement i say it wasn't a private business and think of one but that goes right to the difference right to the difference between government acting as employer and managing the workplace and government acting as sovereign regulating the citizenry in the latter situation what this court cases would say is that that is not government acting to manage the workplace that is government leveraging its its control over the employee acting as sovereign affecting that person is role a citizen and that would get exacting scrutiny and that so that i think that's the that's the key we're not arguing that a boot applies of it's own terms we're arguing that there's an insight that underlays abood and underlies car seti and frankly none the less the political affiliation cases as well because if you look at those what those cases all say contrary to what my friends say is that when government can show the political affiliation is a reasonable requirement for the effective performance of the job in question then that affiliation requirement can be upheld that again is reasonable miss every case minds off along that axis and so i don't i think that's the key point about pickering and if i could i just want to address a couple of other points you know i went on a union is bargaining about a matter of public concern you're saying that that's that is not the same as commenting on a matter of public concern not what i'm saying is that occurs in the context of the big the collective bargaining relationship which is a which is has to be subject to a different set of constitutional standards it has to because think about it with respect to collective bargaining there's a specialized channel of communication that the government sets up the government controls who can speak when the discussion is going to occur and what topics can be discussed all of that is true nobody nobody didn't these that the problem is it is not the same as a private employer that what is bargain for is in all cases a matter of public interest and that changes the that changes the situation in a way that that may require a change of the rule it's one thing to provide it for private employers it's another thing to provide it for the government where every matter bargain forward is a matter of public interest but i guess what i would say about that justice scalia's what i read this court's case is a saying in the employee speech context in the employee petitioning context and the political affiliation context is that you yes it's not wholly free of first member scrutiny but recognizing the government's interest as employer  employer you apply reasonable must review and not the exacting scrutiny that applies from governments regulating as a sovereign right i guess that isn't the issue you may know the case in which any government as an employer is most likely to want to control what the employee says and where he has the right to do that is likely to be a case that involves the institutions job i eat the public interest yes certainly certainly that's why that's why i think there was no doubt in our city that the speech was on a matter of public concern i could've said the same thing and jury a in any number of these courts other cases that's not the that's not the distinction the court has drawn the distinction the court has drawn between government acting as employer managing the workforce and government acting a sovereign regulating the citizenry and if i respectfully submit that that state that that distinction applies with equal force here and especially given the starry decisis considerations that  ought to govern this court's decision in this context but that is more than sufficient to uphold the reaffirm above because as i said what this court's cases have recognized through all the public employer context is the same principle for which a boot stands general you seen and everybody seems to wait government subsidy with government speech do you think our cases give government subsidy the same analysis as they give compelled speech or compel silence may answer mr chief justice what i would say about that just so or more is that in this context the subsidy goes to the process of contract formation contract administration within a collective bargaining context that i described earlier that of necessity different first amendment standard has to apply to thank thank you general three minutes mr carmen you thank you is to the absence of a factual record here it's important to point out that we gave them an amended answer where they can make any allegation they wanted and that page four of their so called opposition is that big to quote the unions do not oppose the  judgment on the pleadings why is that because they certainly it's their burden to argue for example that agency fees will lead to the demise of the in but they didn't make any such allegation in their answer they didn't make any such allegation response to justice ginsburg's question and they've got all the facts in terms of the union's fiscal well being that's because they can't make such an allegation the real how do we know that twenty five states prohibit agency fees not one union re c one example of a union capitulating because of that the federal government doesn't allow agency fees and only a third of the members are union members and yet that agent that union survives whereas here we have ninety percent union membership and mr frederick said ninety percent of the nonmembers continue to contribute so the notion that anything could happen adversely here simply doesn't square with things the notion that abood put forth that there's some federal policy in favor of agency fees is completely contrary to the fact twenty nine u s c six one six four b allows excuse me prohibits agency fees if the state prohibits so it allows states to prohibit agency fees conversely it preempts states that fees so the federal policy not only with respect to their own work force but to this respect to the private work force is contrary to agency fees response to justice kennedy's question yes there's a stark difference between single personnel decisions and group decisions n t e u which is a pickering case makes that quite clear even in the pickering context when there was a general rule with respect to outside honorarium the court made it clear that the burden of justification is much higher they haven't come close to this burden of justification because they can't possibly show that agency fees will lead to the end of the union and contrary to my brother and that's the only thing that matters we're talking about the gov government's interest as an employer all they care about according to buddhist having one union instead of two so they only have to speak to one person they don't care about how robust or effective this union is indeed if anything they don't want them to be effective because nobody wants a strong bargaining partner that's going to drive up public expenditures and have a further what do we do with what do you do with the the the law enforcement people who submitted their brief who said the unions actually do training they provide equipment th county can't afford with fees so they are what the general has been saying is we have to leave it to each state to decide because with this kind of agency fee there are things that unions can do that we would choose not to do i mean unions in california gym teacher training exactly and they do fire training they do safety training can you think of something that's more a matter of public concern that's more of it may be a logical point that's more important and yet they dismiss these are somehow prosaic issues they're basic to our democracy and that's why we have an absolute right not to subsidize it no ones are violent these think why if you're receiving the benefits of it but it's your benefit you may disagree with that judgment right but and you can speak about it because why is it hurting your first amendment right if you can speak there ongoing debate about teacher training class size in education reform today the unions have their right to take their side of that view what they don't have a do is a right to demand that the other side subsidize their views on these essential questions a basic public importance thank you counsel the case is submitted