Official Subject to Final Review IN THE SUPREME COURT OF THE UNITED STATES x REBECCA FRIEDRICHS, ET AL. Petitioners No. v. CALIFORNIA TEACHERS ASSOCIATION, ET AL. x Washington, D.C. Monday, January The aboveentitled matter came on for oral argument before the Supreme Court of the United States at a.m. APPEARANCES: MICHAEL A. CARVIN, ESQ., Washington, D.C.; on behalf of Petitioners. EDWARD C. DUMONT, ESQ., Solicitor of California, San Francisco, Cal.; on behalf of Respondent Attorney General of California. DAVID C. FREDERICK, ESQ., Washington, D.C.; on behalf of Union Respondents. GEN. DONALD B. VERRILLI, JR., ESQ., Solicitor General, Department of Justice, Washington, D.C.; for United States, as amicus curiae, supporting Respondents. Official Subject to Final Review C O N T E N T S ORAL ARGUMENT OF PAGE MICHAEL A. CARVIN, ESQ. On behalf of the Petitioners ORAL ARGUMENT OF EDWARD C. DUMONT, ESQ. On behalf of Respondent Attorney General of California ORAL ARGUMENT OF DAVID C. FREDERICK, ESQ. On behalf of the Union Respondents ORAL ARGUMENT OF
GEN. DONALD B: VERRILLI, JR., ESQ. For United States, as amicus curiae, supporting Respondents REBUTTAL ARGUMENT OF MICHAEL A. CARVIN, ESQ. On behalf of the Petitioners Official Subject to Final Review P R O C E E D I N G S (10:04 a.m.)
CHIEF JUSTICE ROBERTS: We'll hear argument this morning in Case 14915, Friedrichs v. The California Teachers Association, et al. Mr. Carvin. ORAL ARGUMENT OF MICHAEL A. CARVIN ON BEHALF OF THE PETITIONERS
MR. CARVIN: Mr. Chief Justice, and may it please the Court: Every year, Petitioners are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize. Abood's authorization of this clear First Amendment violation should be overturned, both to end this ongoing deprivation of basic speech and association rights, and to restore consistency and predictability to the Court's First Amendment jurisprudence.
JUSTICE GINSBURG: Mr. Carvin, is it permissible, in your view, to allow the union to be the exclusive representative so that nobody else is at the bargaining table?
MR. CARVIN: Yes, that's fine with us. Our objection, of course, is being forced to subsidize that exclusive representative. Official Subject to Final Review 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 in collective bargaining context, we are required to free ride on the union because they are the exclusive representative and we don't have our own vehicle. So the freerider justification is far weaker in the collective bargaining context than it is in the union lobbying context.
JUSTICE SCALIA: Mr. Carvin, is is it okay to force somebody to contribute to a cause that he does believe in?
MR. CARVIN: I wouldn't think, Your Honor, that you could force Republicans to give contributions.
JUSTICE SCALIA: Yes. That's that's what I'm thinking. Could you enact a law? Let's say the national political parties are in trouble so they enact a law that says all all members of the Republican party, if you want to be a member you have to contribute Official Subject to Final Review so much money.
MR. CARVIN: No.
JUSTICE SCALIA: Is that okay?
MR. CARVIN: No, it's not, and that's because the bedrock principle, as Harris made clear, is not whether or not you vividly oppose what they're saying 8
JUSTICE SCALIA: Right.
MR. CARVIN: it's because you don't wish to subsidize it.
JUSTICE SCALIA: Exactly. So I don't know why you're putting so much emphasis on the fact that your your clients oppose. It really wouldn't matter, would it?
MR. CARVIN: No. 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 a thousand percent right, Your Honor. You don't 19
JUSTICE KENNEDY: If if you were to prevail, what would happen with private employers in a State which said that there should be an a union shop?
MR. CARVIN: Nothing, Your Honor.
JUSTICE KENNEDY: What 25
MR. CARVIN: For two Alderson Reporting Company Official Subject to Final Review
JUSTICE KENNEDY: And and because?
MR. CARVIN: Because the First Amendment doesn't apply to private employers, and because in Beck the Court established the rules for agency shops based on the statute without any First Amendment 6
JUSTICE KENNEDY: I think that's correct as a basic distinction. It is true, though, assuming that you have a State statute which allows an agency shop or a a closed shop, that that is State participation in the very kind of coerced membership and coerced speech that you're objecting to.
MR. CARVIN: Well, I don't, in candor, think that that would create State action under the Court's modern jurisprudence, such as Moose Lodge, where it turns on who is making the decision that is being objected to. In your hypothetical it would be the private employer. But that aside, as the Court made clear in Harris, even if it did reach First Amendment, there's a there's a serious difference between a grudging authorization or the government permitting private employers to engage in agency shops and the government itself affirmatively imposing them on its own public employees.
JUSTICE GINSBURG: What about the Railway Official Subject to Final Review Labor 2
JUSTICE KAGAN: What is the 3
JUSTICE GINSBURG: What about the Railway Labor Act?
MR. CARVIN: I apologize.
JUSTICE GINSBURG: The Railway Labor Act.
MR. CARVIN: Yes.
JUSTICE GINSBURG: You you answered Justice Kennedy that, in the private sector, this 10 this is all right, you can have an agency shop. How about under the Railway Labor Act?
MR. CARVIN: Well, as you know from Street, you can have agency shops but the agency fees can only go to things that are germane to collective bargaining. In other words, they impose the Abood rule in the private sector as a matter of statutory interpretation, and nothing the Court says about 18
JUSTICE GINSBURG: But you don't have any First Amendment argument about that, about the either the private sector or railroads.
MR. CARVIN: Not at all, Your Honor. We 22 we are strictly limiting ourselves to public employees because public employers obviously are subject to far greater constraints under the First Amendment that the Alderson Reporting Company Official Subject to Final Review
JUSTICE KAGAN: Well, one of the points of 2 your public employee cases generally, Mr. Carvin, is 3 essentially to ensure that when the government acts as 4 an employer, that the government be put in the same 5 position as a private employer; in other words, that the 6 various constraints that would constrain the government 7 when it's acting as sovereign fall away and a different 8 and lesser set of constraints apply that are meant 9 essentially to ensure that the government doesn't use its position as leverage over things it oughtn't to be 11 able to control, but that the government can do the same 12 things that a private employer can. 13 And so why doesn't this fall within that 14 category of things? In other words, you've just said 15 private employer can decide to do this. That's not a 16 constitutional problem. So too with the government 17 employer. 18 MR. CARVIN: For two reasons, Justice Kagan. First, I must respectfully disagree 20 None of the Court's First Amendment 21 says public employers have the same 22 employers. 23 Private employers under with the premise. jurisprudence quite rights as private the Constitution can discriminate on the basis of political affiliation. 25 They can even discriminate on the basis of sexual Official Subject to Final Review orientation. But nobody thinks that public employers can do that. Plus which, even under Pickering, for example, the deferential review you're referring to imposes greater constraints on public employers than private employers. Bargaining 7 As I said, Mr. Carvin 8
MR. CARVIN: Sorry.
JUSTICE KAGAN: But there's a lesser set of constraints. And 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 it oughtn't properly to do. But the 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.
MR. CARVIN: The Court's governmentasemployer speech and First Amendment draw a clear distinction between restricting employee speech, like under 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 employee to subsidize or associate with an outside group. Official Subject to Final Review That's obviously 2
JUSTICE SOTOMAYOR: How is that different 3
MR. CARVIN: for example, Rutan is subject to strict scrutiny because they are leveraging the employment relationship to force you to associate with a political party.
JUSTICE KAGAN: Well, that sounds 8
MR. CARVIN: Similarly 9
JUSTICE KAGAN: like you're drawing a distinction 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 no less and no greater an offense than compelled silence.
MR. CARVIN: Yes. Certainly in terms of Petitioners' rights. But Your Honor, the scrutiny given to the speech being subsided doesn't dictate the level of of speech scrutiny given to the compulsion speech. For example, the you can stop unions from making political contributions under the case law, but that hardly suggests you can compel a nonmember to subsidize the union's contributions. You can stop public employees under the Hatch Act from engaging in basic political participation, but that hardly suggests that you could Official Subject to Final Review 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 employee speech. Restricting employee speech is an inherent part of the employment relationship. The employer has to be able to restrict the employees' speech, as this Court has frequently noted, or you couldn't have a workplace. Plus which we 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. Neither of those concerns is present when you have a categorical 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 involving the Federal judiciary in personnel decisions. And it's certainly not an inherent part of the employment relationship. It is, to use your phrase, leveraging the employment relationship to require something that the State couldn't require directly. JUSTICE SOTOMAYOR: Well, why are we treating the government differently than a private Official Subject to Final Review employer? You just earlier said, and I think our 3 our cases are replete with the point that as employer, the government can already restrict speech which is, I think, a higher problem than subsidization. We've already permitted subsidization of bar 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 entity? Because this union under California law is a State entity. No.
JUSTICE SOTOMAYOR: Oh 14
MR. CARVIN: I'm sorry.
JUSTICE SOTOMAYOR: I I beg to differ. Hold on, Mr. Carvin. I'll get you the section.
MR. CARVIN: Sure.
JUSTICE SOTOMAYOR: It says, "When recognized as 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, it requires them to do training, and in the end it accepts their recommendations with respect to to the issues Official Subject to Final Review of employment at its own will, meaning the State is creating the union as part of the employment training and other responsibilities.
MR. CARVIN: Justice Sotomayor, I think it's important to draw a distinction between having an official position they certainly do. They are 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 raises. It could tell them not to 12
JUSTICE SOTOMAYOR: Oh, in fact, it might be able to do that.
MR. CARVIN: I don't 15
JUSTICE SOTOMAYOR: If it it tells them what they can they give the State legislature has given them the right to do that.
MR. CARVIN: Right.
JUSTICE SOTOMAYOR: But what would take away from their right to say, no, you can't bargain on these particular topics?
MR. CARVIN: The First Amendment. In other words, the the scope of collective bargaining is obviously something the State can dictate. It could never dictate the union's position on collective Alderson Reporting Company Official Subject to Final Review
JUSTICE SOTOMAYOR: Absolutely.
MR. CARVIN: Well well, 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 and benefit.
JUSTICE SOTOMAYOR: Well, they wouldn't 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.
MR. CARVIN: Well, again, we need to distinguish between collective bargaining and lobbying.
JUSTICE SOTOMAYOR: Exactly.
MR. CARVIN: Exactly. And and here's the point: They couldn't collective bargaining is unique, because it requires public officials to meet and negotiate in good faith and mediate any impasses with unions. None of that exists in lobbying, for example. State legislators could close their door whenever they want.
JUSTICE KENNEDY: Well, even even with 23
MR. CARVIN: What 24
JUSTICE KENNEDY: even aren't charges suppose the union has an article or a public Official Subject to Final Review relations campaign to protest merit pay. I take it that's a chargeable expense.
MR. CARVIN: Yes, under Lehnert. And on my 5
JUSTICE KENNEDY: So so collective bargaining in in this instance subsumes includes this wideranging effort on the part of the union to have a public relations campaign in favor of principles that some of its members that some teachers strongly object to.
MR. CARVIN: Exactly, Your Honor. And my point in response to Justice Sotomayor 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 the key point is, I think they say you can abandon you can ban collective bargaining, but you can't ban lobbying. But it's important to focus on why that is so. The reason that is so is because we are imposing an obligation on public officials in collective bargaining, that exists nowhere else, to negotiate in good faith with the union. But they couldn't tell the union don't advocate to the school board, pay raises, and things Official Subject to Final Review like that. They can simply revoke collective bargaining by saying, just like the State legislature, the school board doesn't have to listen. JUSTICE SOTOMAYOR: If we MR. CARVIN: So the distinction is between what public officials have to meet and negotiate on, but that doesn't translate into any ability to tell the union what to say or do. And I'm assuming JUSTICE SOTOMAYOR: In terms of MR. CARVIN: the Respondents will agreed with that. JUSTICE SOTOMAYOR: But the teachers can lobby. There's nothing wrong with the teachers speaking. MR. CARVIN: And that's the whole point. The teachers can lobby. They can go to the State legislature. JUSTICE SOTOMAYOR: Uhhuh. Just like the union can. MR. CARVIN: Just like the union can. And yet, they can't be forced to subsidize the union's lobbying JUSTICE SOTOMAYOR: But what does your lobbying do MR. CARVIN: However so with respect to Official Subject to Final Review collective bargaining, they can't negotiate. So the freerider rationale 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 is extinguished in those circumstances, even though in lobbying, they can engage in their own lobbying, but we don't allow agency fees for lobbying.
JUSTICE KAGAN: Mr. Carvin, 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 million employees. So what special justification are you offering here?
MR. CARVIN: There are two special justifications, Justice Kagan. The first one is that this Abood erroneously denies a fundamental right. It doesn't expand a fundamental right. And as the Court made clear in Gant, the right of the citizen not to be subject to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis.
JUSTICE KAGAN: You say this a lot in Official Subject to Final Review your MR. CARVIN: The second JUSTICE KAGAN: Excuse me. MR. CARVIN: Sure. JUSTICE KAGAN: You say this a lot in your briefs. But I I I guess I found it hard to understand that the idea that every time we deny a claim of right, whether it's the First Amendment or the Fourth Amendment or the Fourteenth Amendment, that that denial of the claim would not have any stare decisis effect. I mean, we do that constantly. We do that tens of times every year. MR. CARVIN: But but you are asking what if the Court concludes that Abood was erroneous, what special justification is there? JUSTICE KAGAN: Yes. And your answer is essentially you don't need a special justification if the initial decision improperly denied a claim of right. MR. CARVIN: Right. JUSTICE KAGAN: I guess I'm saying that I find that an extremely difficult concept to understand. It would take away stare decisis effect from numerous I mean, just hundreds, thousands of our decisions. MR. CARVIN: But Justice Kagan, with respect, I think the proof is in the pudding. The Court Official Subject to Final Review has never upheld an erroneous denial of a right on stare decisis. JUSTICE BREYER: And you think all the Fourth Amendment cases, in your opinion, are correct. I mean, you know, the police can go search a car, the good faith rule in respect to admission of evidence that was seized unlawfully under the Fourth Amendment. 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 really extended and, in fact, there should be no rule that gives police any special authority to search a car. MR. CARVIN: That JUSTICE BREYER: There should be no rule that stops any incidents from coming in. I mean, there are dozens of cases where this Court has denied individual rights. And you're saying all those cases are now free of any stare decisis inhibition. Is that the point, or is it just labor unions? MR. CARVIN: No, no. Your Honor, in fact, the Fourth Amendment is not a hypothetical. That was what Gant involved. And Gant is the one that I was quoting when it says the right to constitutional treatment outweighs the reliance interests of stare Official Subject to Final Review decisis. But if I could move to my second 3
JUSTICE BREYER: Well, wait. Well, what about the Eighth Amendment? That's a good one. There's an individual right, some think, 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 stare decisis.
MR. CARVIN: If the Court was convinced that capital punishment was clearly outlawed by the Constitution, I think it would be very strange to tell people who were being executed in the future that even though this is an unconstitutional execution, we are bound by our erroneous prior decisions.
JUSTICE KENNEDY: Well, Mr. Carvin, let's 17 let's let's assume that stare decisis is an important consideration for the Court. Let's assume that.
MR. CARVIN: Sure.
JUSTICE KENNEDY: What about the answer to Justice Kagan's questions about the many contracts, perhaps thousands of contracts? Would they suddenly be endangered? Would they all be void? Could you address that?
MR. CARVIN: There is no reliance interest. Official Subject to Final Review These contracts will operate precisely the same, the day after Abood is overruled, as they would before. JUSTICE GINSBURG: But what would happen then? MR. CARVIN: Sorry. JUSTICE GINSBURG: What would happen to the employee who said now Abood is off the books? MR. CARVIN: Right. JUSTICE GINSBURG: I want back the agency fee that I was compelled to pay. That was an unconstitutional exaction. So all of the people who paid these fees against their will MR. CARVIN: When you JUSTICE GINSBURG: have a right to get it back? MR. CARVIN: No. No more than anybody had the right to get recompensed under Citizens United or the commercial speech cases, once you relied those First Amendment speeches doctrine there. As I understand it, the Court's analysis prescribes prospectively. That's all we're asking is for prospective relief. It doesn't apply retroactively. And to get to the point, all of the benefits remain precisely the same. They simply, the union's future bargaining efforts would no longer be subject to Official Subject to Final Review unwilling agency fee.
JUSTICE KAGAN: Well, Mr. Carvin 3
MR. CARVIN: Do you 4
JUSTICE KAGAN: remember, one, you're assuming that these provisions are completely severable, which I imagine depends on the contract. But number two, even suppose that they are severable, these provisions are bargained for benefits. The 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 agency fee provision is in the contract.
MR. CARVIN: No. Again, I must respectfully disagree with the factual matter. The union did not go in and say we would have asked for a 10 percent increase, but now we're going to sell out our members' rights to a 9 percent increase so we can line our own pockets with agency fees 22
JUSTICE KAGAN: The unions have 23
MR. CARVIN: but they're not sorry.
JUSTICE KAGAN: for for for many ways of dealing with their need for adequate funding in Official Subject to Final Review order to perform their collective responsibilities 2 collective bargaining responsibilities. They asked for this way and not for other possible ways of achieving adequate funding. And you would be essentially stripping them of this way, and not giving them anything to replace that with.
MR. CARVIN: Well again, they didn't negotiate with the employer for funding because they don't get any funding from the employer; they get it from their members. So no position they took in collective bargaining is at all affected by the completely separate issue of how they 13
JUSTICE SOTOMAYOR: Ah, but that's the question, isn't it? Would it be illegal for the government, as employer or government, to fund the union?
MR. CARVIN: That's a I thought about that, Justice Sotomayor. It's a very tricky question. Under Johanns, 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 Planned Parenthood, but it couldn't require citizens to subsidize Planned Parenthood. So in that sense, yes, the government would have far greater leeway. Official Subject to Final Review That said 2
JUSTICE SOTOMAYOR: So if the union had a way, or something to negotiate, which was right now, the union participates in the grievance procedure and it pays certain expenses for that, it could have said to the employer, we're no longer getting enough money to be the exclusive representative of every employee 8
MR. CARVIN: Right.
JUSTICE SOTOMAYOR: so now we want you to fund certain things.
MR. CARVIN: Well 12
JUSTICE SOTOMAYOR: That could very well have been part of the negotiation.
MR. CARVIN: 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 by statute.
JUSTICE SOTOMAYOR: No. You're you're assuming 20
MR. CARVIN: Prior 21
JUSTICE SOTOMAYOR: I'm not assuming the state of the law as it exists now. I'm assuming that we were to to undo and say they can't charge an agency fee.
MR. CARVIN: Right. Official Subject to Final Review JUSTICE SOTOMAYOR: All right? California's going to have to respond somehow. It's now breaching the agreement it had with the union. MR. CARVIN: It's JUSTICE SOTOMAYOR: They're going to have to come to some sort of accommodation. MR. CARVIN: Right. And they would excise the agency fees part of the contract. JUSTICE SOTOMAYOR: Even if they did, could they then decide to fund the union? MR. CARVIN: Oh. But that's a separate question. JUSTICE SOTOMAYOR: Well MR. CARVIN: If if they wanted to go ahead and fund the union, as I said, they've got some discretion to do it. I think the one area the government doesn't have the power to subsidize speech is when it's engaged subsidizing political speech in a viewpointdiscriminatory way. JUSTICE SOTOMAYOR: Let's let's take that aside. I'm talking about the the collective bargaining part of the union. MR. CARVIN: Oh, okay. Then I'm maybe not understanding it. If if the union is could they subsidize the union's collective bargaining efforts? Official Subject to Final Review
JUSTICE SOTOMAYOR: Mmhmm.
MR. CARVIN: I think they might be able to, but of course no State 4
JUSTICE SOTOMAYOR: All right. So why can't they assess why can't they assess all of their employees a tax for that contribution?
MR. CARVIN: Right. And that was 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 viewpointdiscriminatory way.
JUSTICE SOTOMAYOR: I'm a little 14
JUSTICE ALITO: Is there any history in American labor management relations, at least going back, I don't know what, 75, 80 years of employers paying for unions? I thought the union movement was against this long ago.
MR. CARVIN: Your your recollection of history is correct. And of course, currently no government ever funds unions. Indeed, under the NLRA, it's 23
JUSTICE BREYER: There there were company unions, but regardless 25
MR. CARVIN: But Alderson Reporting Company Official Subject to Final Review JUSTICE BREYER: I'd like two minutes to MR. CARVIN: But if I JUSTICE BREYER: Sir, go ahead. Finish. Finish, finish. MR. CARVIN: Before you JUSTICE BREYER: Finish. Finish, please. MR. CARVIN: Just one more sentence. Under the NLRA, it's a felony for the employer to give the unions money because it would influence the unions, and contrary to the entire structure of collective bargaining. JUSTICE SCALIA: Is it a bargainable subject? MR. CARVIN: Excuse me JUSTICE SCALIA: Is it a bargainable subject? I mean, it's a political subject. I suppose you can enact a statute that says the government will fund you, but is is it bargainable? Is it one of those items that the union can bargain for? MR. CARVIN: It doesn't exist, it's never existed in American society, and there's no way the public employer, particularly 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 Official Subject to Final Review giving money to unions, 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. JUSTICE BREYER: I have a different somewhat different subject, but it and I don't know how to get you to focus on this exactly. Because I 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 years ago. But it was years ago. It was years ago. I mean, maybe Marbury v. Madison was wrong. There are people who argue certain aspects were. And the concerns I I have in terms of workability are not so much the details. 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. Official Subject to Final Review It certainly is.
JUSTICE BREYER: And 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 40 years and has lasted reasonably well not perfectly. I guess people could overrule our decisions just as easily. I've had a few dissents. In those dissents I think I'm right and the others are wrong, and then think I'm wrong and they're right. All right? There are a lot of people who think that. Do you see where I'm 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.
MR. CARVIN: Justice Breyer 17
JUSTICE BREYER: And you you start overruling things, what happens to the country thinking of us as a kind of stability in in a world that is tough because it changes a lot.
MR. CARVIN: 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 of Abood's result directly conflict with other precedent of this Court. So by overruling Official Subject to Final Review Abood, 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 the new rationale for Abood is it's subject to deferential government as employer review. It's contrary to Harris, it's contrary to Knox, it's contrary to Abood itself, which is huge Pickering analysis. The notion that the union's duty somehow justifies agency fees because they've got a duty to represent nonmembers, which we've chatted about, that comes from the dissenting opinion in Lehnert. So you'd have to overturn Lehnert, which characterizes this argument as turning the Court's principles on its head and is wholly unworkable in the name of preserving another precedent. The notion that collective bargaining doesn't involve matters of public concern, which has been offered up, that's contrary to Harris, Abood itself, which said it was, Pickering, which involved basic issues of school finances, so you would have to strike all of those down. Respondents' radical arguments that it's not entitled to any First Amendment protection under the employee speech doctrine and under the Glickman Official Subject to Final Review commercial speech doctrine is contrary, not only to Abood, every Abood case, and the Harris dissenting opinion because 4
JUSTICE KAGAN: Mr. Carvin 5
MR. CARVIN: because everyone recognizes there's some First Amendment protection.
JUSTICE KAGAN: I mean, it seems to me I guess we have one disagreement, which is how well Abood fits with all of our other employee speech cases, because I think Abood fits pretty well. It didn't cite Pickering, but it essentially had the exact same concerns as Pickering, which was the employer's interest, the the government's interest as an employer, and how that related to an employee's speech right and and basically arguing for a a balancing test. So so really what your argument comes down to is two very recent cases, which is Harris and Knox. And there you might say that Harris and Knox gave indications 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 Abood framework. In the Harris case, the parties came here and explicitly asked us to overrule that case. Almost Official Subject to Final Review all the briefing was about overruling that case, and the Court decided not to overrule that case and instead to say that that the employees there were were simply not public employees at all. So taking two extremely recent cases, which admittedly expressed some frustration with Abood, but also specifically decided not to overrule Abood, I mean, just seems like it's it's nothing of the kind that we usually say when we usually say that a precedent has to be overturned because it's come into conflict with an entire body of case law. MR. CARVIN: Again, I must respectfully disagree. I think the classic justification for stare decisis overturning the case is that subsequent cases have undermined the reasoning and principles there. I think we can certainly agree that Harris and Knox certainly undermined the doctrinal underpinnings of Abood. The fact that they're really recent as opposed to not so recent doesn't change the fact that Abood has been overwritten. Citizens United pointed to two differing lines of cases in the First Amendment area as its principal rationale for overturning Austin. The Hudgens v. NLRB case. In Logan Valley, it upheld something. In Lloyd Corporation, it distinguished it but not overruled Official Subject to Final Review it. Hudgens 2
JUSTICE BREYER: Well, I I 3
MR. CARVIN: This doesn't this 4
JUSTICE BREYER: I'll accept that. Let me accept that what you can do is you can go through and you're good at it, and so is the other side. You know, you go through the cases and you draw the line here, there, and the other 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 buy 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 drawing there. The second thing is, what you said was 24 and it's true employees can say what they want. We're talking about six people in a room bargaining Official Subject to Final Review about 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 that'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 it.
MR. CARVIN: 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 famously 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 Rutan 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 the compelled association is something that this Court has consistently condemned as basic to the Abood itself said it's contrary to the most basic principles of of the founding, which is to force people to 25
JUSTICE GINSBURG: Mr. Carvin, do I take Official Subject to Final Review it it was something that Justice Breyer said; you didn't respond directly to it. He said if Abood falls, then so do our decisions in Keller on mandatory bar association, on student activities fee. Do you you agree that that would be a consequence of your theory?
MR. CARVIN: Well, no. In fact, that hypothetical was completely eliminated by Harris, which made it quite clear that neither Keller nor Southworth was in any jeopardy, because the rationale of those cases was significantly different than the rationale of Abood.
JUSTICE KAGAN: Those cases 14
MR. CARVIN: Keller 15
JUSTICE KAGAN: start with Abood, Mr. Carvin. Those cases say Abood is the framework, and those cases decide the questions that they decided specifically within that framework.
MR. CARVIN: A lot of cases cite cases, but the question is 21
JUSTICE KAGAN: It's not a cite. It's a 22 this is the way we look at mandatory fee cases.
MR. CARVIN: Again, I must respectfully disagree. They do have that in common at that level of generality, but there's a key distinction, as as Official Subject to Final Review 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 nonspeech restriction. It's like what the Court said in the Glickman commercial speech context. The initial association has nothing to do with speech. There, it was regulating lawyers, not advocating on behalf of lawyers. And if those 10
JUSTICE KAGAN: Bar associations do things all the time that lawyers disagree with. They engage in certain kinds of litigation and not other kinds of litigation. They take public policy positions on certain issues and not other issues. I mean, I I think it would be impossible to make a distinction along that score.
MR. CARVIN: Keller struck down those kinds of activities by bar associations, taking positions on Federal jurisdiction, taking position on gun control. It said they could only spend money 21
JUSTICE KAGAN: Do you think bar associations do, now, nothing that that that members of the bar could disagree with and find hostile to their own views?
MR. CARVIN: If they do it, and if it's not Official Subject to Final Review germane to lawyer ethics or service, then, by definition, it's a violation of Keller. So I sure hope the bars are not violating the clear pronouncements of this Court. The Keller only upheld expenditures that are a necessary incident to their principle role of regulating lawyer ethics and legal behavior. All of the other things that were lawrelated were struck down in Keller. So that is not 10
JUSTICE KENNEDY: Any jeopardy, if not 11
JUSTICE SCALIA: I think that we're talking about two kinds of bar associations. I mean, voluntary bar 14
MR. CARVIN: Oh 15
JUSTICE SCALIA: associations get into a lot of those other things. You're you're just saying that those bar associations that you're compelled to join as a condition of your practice do not get into those things.
MR. CARVIN: Oh, absolutely. If if they required me to join the ABA, I would have an absolute First Amendment right not to do that, because virtually every word out of their mouth I disagree with.
JUSTICE KENNEDY: Mr. Carvin Mr. 25 Mr. Carvin, I see I see your I I I see Official Subject to Final Review your your time is running. Could you address briefly the optin/optout requirement, an issue which, I take it, is in the case, regardless of of of the the way we rule on the issue we've been discussing?
MR. CARVIN: It it certainly is, Your Honor. And that's because the only it will only affect the amount that you need to opt in or opt out on. And my short answer and I am running out of time is, if this regime is upheld, that means tomorrow the State of California could say every public employee contributes 1 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 war chest by people who really have not made a voluntary decision to do so. Unless there are further questions, I'd like to reserve the remainder of my time.
CHIEF JUSTICE ROBERTS: Thank you, Mr. Carvin. Official Subject to Final Review General DuMont. ORAL ARGUMENT OF EDWARD C. DUMONT ON BEHALF OF THE RESPONDENT ATTORNEY GENERAL OF CALIFORNIA MR. DUMONT: Mr. Chief Justice, and may it please the Court: California understands the First Amendment interests that are involved in this case. But the State also has critical interests in being free to manage the public workplace, much like a private employer, unless we are improperly leveraging the employment role to coerce or suppress citizens' 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. JUSTICE ALITO: Before you get MR. DUMONT: If JUSTICE ALITO: Before you get into that, could 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? Official Subject to Final Review MR. DUMONT: 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. 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's one representative that we can deal with, and that representative 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 why CHIEF JUSTICE ROBERTS: But it's not MR. DUMONT: we can't take it over. Excuse me. CHIEF JUSTICE ROBERTS: No. Go ahead. Finish. MR. DUMONT: Well, which is why it's very important that we not fund it directly, and that we not be perceived as controlling the speech of that representative. CHIEF JUSTICE ROBERTS: It's it's hard to Official Subject to Final Review visualize this in a pure employeremployee relationship, when the collective bargaining agreement, itself, has to be submitted for public review and public comment. That that suggests that you're doing more than simply regulating the employment relationship. MR. DUMONT: Well, the public employment context is certainly different from the private context, and that's one of the important ways. We don't contest that. But I think the question is, before you get to the final legislative approval or or board approval stage, what kind of system can we have, legitimately, that will be a workable system, both for our employees who overwhelmingly have shown they want collective bargaining, and for the local managers, the the actual managers of local governments, of school districts, or of State agencies who need to have the practical problem of of reaching an agreement that will govern CHIEF JUSTICE ROBERTS: If your MR. DUMONT: their workplace for a period of time. CHIEF JUSTICE ROBERTS: If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the freerider concern Official Subject to Final Review that's been raised is is really insignificant.
MR. DUMONT: With respect, I disagree with that. Because many people can want something in the sense they view it as very advantageous to themselves, but if they are given a choice, they would prefer to have it for free, rather than to pay for it. This is a classic collective action problem. So when we so from the employer's point of view, when we're going to have collective 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 the rival unions. They might be in favor of unionism, but they supported a different one. But once the majority has said this is our representative, then that is going to represent all employees. And it's important then, from the employer's point of view, that that representative be adequately funded and stably funded, so that they can work with us or work with the employer to reach actual progress.
JUSTICE KENNEDY: But it's it's almost axiomatic. When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are Alderson Reporting Company Official Subject to Final Review strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size? And you the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it correct me if I'm wrong agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
MR. DUMONT: And let me what I'd like to do is to separate out the important public policy issues, which we do not deny crosscut between the public's fear and the the realm of citizens' speech and the the isolated collective bargaining realm. They they do crosscut, but that 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, which we do by having one union. Official Subject to Final Review It's a democratic process. The employees get to pick that union. And because it's a democratic process, almost it's almost guaranteed 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 that you'll 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 wide or enriched variety of viewpoints that employees may have as citizens. And they can express them in the legislative realm. They can express them at the workplace, just not in the bargaining room.
JUSTICE KENNEDY: Do union do unions have public relations programs of or newspaper articles, media programs to talk about things like merit pay, protecting underperforming teachers and so forth? Do the unions actually make those arguments, and aren't those chargeable expenses?
MR. DUMONT: The union is engaged in a variety of speech. Some of it is chargeable and some of it is not. Official Subject to Final Review
JUSTICE KENNEDY: Some of the ones I've mentioned are chargeable?
MR. DUMONT: I believe under current law they are. And if there's a need to 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 the collective bargaining sphere per se, that is a a more of a Lehnert question than an Abood question. It does not 11
JUSTICE SCALIA: Well, if it 12
MR. DUMONT: require it would not 13
JUSTICE SCALIA: 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 lesser wages? Should it promote teachers on the basis of seniority or on the basis of all of those questions are necessarily political questions. That's that's the major argument made by the other side.
MR. DUMONT: And Your Honor, 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 Official Subject to Final Review trying to run a government in which the debate must be wide open, and we would not dream of being able to impose 4
CHIEF JUSTICE ROBERTS: What is you said you agree with that. You agree with that everything they're negotiating over is a public policy question?
MR. DUMONT: No. I don't agree that 8
CHIEF JUSTICE ROBERTS: Why?
MR. DUMONT: every issue is a public policy question, but I don't want to dispute the fact that many that there are deep public policy implications to many of the topics and to the general tenor of public employee bargaining. Many of the public 15
CHIEF JUSTICE ROBERTS: If you disagree with that, what is what is your best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question?
MR. DUMONT: Mileage reimbursement rates or how you're going to have public safety.
CHIEF JUSTICE ROBERTS: 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 costs more money. And the amount of Official Subject to Final Review money that's going to be allocated to public education as opposed to public housing, welfare benefits, that's always a public policy issue.
MR. DUMONT: Which is why I would say I would not try to draw the line by saying that some part of this speech is not a matter of public concern or whatever term you want to use. What I would say is that they when we're 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, and 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.
JUSTICE ALITO: Where does the where does the State of California think the line should be drawn? A provision of California law this is Section 3546(b) of the 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 Official Subject to Final Review negotiating with the employer." Is that constitutional?
MR. DUMONT: I don't know the answer to that question. I don't think it's the question presented here. It's not what the union's here it's not the position that they have 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 fundamental line that Abood draws. But the question here is whether that line 11
JUSTICE ALITO: Well, one of the questions is whether the whether Abood is workable. So I do think it's relevant to know whether you think that is on one side of the line or the other.
MR. DUMONT: 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 prescinding somewhat from the from the broad debates about public policy, which will continue to go on, but getting particular contracts.
CHIEF JUSTICE ROBERTS: Is there Alderson Reporting Company Official Subject to Final Review MR. DUMONT: And the the particular speech restrictions, if I might, just in excuse me. I'm sorry. CHIEF JUSTICE ROBERTS: Is is there any is there any legal argument or factual basis on which the State of California disagrees with the position of the union? MR. DUMONT: I'm sorry. Any any aspect of CHIEF JUSTICE ROBERTS: Well, we have I'm trying to sort out. We have, as you know, three Respondents here, and I'm trying to sort out the different position. Is there anything in any way in which your presentation disagrees with the union's presentation in its in its brief? MR. DUMONT: I don't think there's necessarily any fundamental disagreement. I think we would emphasize that our interests here are not are primarily interests of employees in coming to practical accommodations here. There was a long history in California in the '50s and s of labor unrest. It led to a commission that that issued a a report that was very comprehensive and addressed this issue, among Official Subject to Final Review others. This issue of agency fees was part of the debate that went into the legislative decision in the early '70s to adopt this this system, and we think that was a legitimate legislative decision. JUSTICE SCALIA: General DuMont, you you are arguing that and I sympathize with 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 union would not survive without these these fees charged to nonmembers of the union? Federal employee unions do do not charge agency fees to nonmembers, and they seem to survive; indeed, they prosper. Why why is California different? MR. DUMONT: 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 percent membership rate. And from JUSTICE GINSBURG: As opposed to what is the membership rate in in the California teachers unions? How how many are members of the union? MR. DUMONT: Actual membership? I'm afraid Official Subject to Final Review I don't know that. Mr. Frederick may may know that. JUSTICE GINSBURG: Because you you've pointed out the membership is low in the Federal sector. But there is no bargaining about pay, right? MR. DUMONT: There is no bargaining about pay; that's correct. JUSTICE SOTOMAYOR: General, there was no factfinding below on this assumption, factual assumption of whether MR. DUMONT: There has been no factfinding at all. JUSTICE SOTOMAYOR: 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. MR. DUMONT: We don't know that factually. The State would prefer not to take that risk, and I don't think the Constitution requires us JUSTICE SCALIA: You're the one making the argument. It isn't it isn't the job of the opponents to show that it you know, that it will survive. You're the one that's saying we need to do this because otherwise it won't survive. It seems to me the burden on is on you to suggest why that's so. MR. DUMONT: With respect, Your Honor, I don't think Alderson Reporting Company Official Subject to Final Review
JUSTICE KENNEDY: You have a compelling interest.
MR. DUMONT: With respect, Your Honor, I don't believe that what we need to show is that the union 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 impose an undue burden. And let just me 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's speech as a citizen, either in the workplace or out of the workplace. All this speech is workplacerelated, and if it's not, then that's a matter of 19
JUSTICE KENNEDY: It's odd to say that if X is required to pay $500 for someone to espouse a belief that he doesn't share, that he is now free to go out and and argue against it. That means he has to spend another $500 so that it balances out? That makes no sense.
MR. DUMONT: See, what I would say here Official Subject to Final Review is to me, Your Honor, this case is very much like Southworth, 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 the point in Southworth was to have students speak JUSTICE KENNEDY: The whole idea of Southworth was a public forum. Are you saying that the whole purpose of agency fees is to have an open public forum? MR. DUMONT: No. I'm saying it's to have a bargaining forum, but that it is legitimate when we have compelled compelled association to have that bargaining forum. It is also legitimate to have user fees that fund it. CHIEF JUSTICE ROBERTS: Thank you, General. Mr. Frederick. ORAL ARGUMENT OF DAVID C. FREDERICK ON BEHALF OF THE UNION RESPONDENTS MR. FREDERICK: Thank you, Mr. Chief Justice, and may it please the Court: Abood 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 Official Subject to Final Review 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 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 hotbutton issues, to be sure, Justice Kennedy, but many of them are also mundane 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, and these are all basic services that require research, legal representation, conferring and consulting, communicating Official Subject to Final Review with members, trying to ascertain what the positions of all members of the workforce are before the union presents a a policy JUSTICE KENNEDY: Well, I suppose, if that's so convincing, the union can convince teachers to join the union. MR. FREDERICK: 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, Justice Kennedy, in saying that what we are talking about here are a range of services that they're providing. We're talking about a service fee for the State law that provides for the exclusive representative to be the union when that is voted for by a majority of the workers. And here, this Court's cases have distinguished between citizens' speech, where the very teacher who might disagree with the union's position is free to go 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. JUSTICE KENNEDY: But but but Official Subject to Final Review philosophically, if you use Pickering in this case, you're committing error of composition. You're comparing a whole group of persons who have their views coerced or compelled against one person that that 5 Pickering is just inapplicable on that on that ground.
MR. FREDERICK: 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 and were to get input, is necessarily going to be dealt with a cacophony of views unless it comes up with a reasonable system of management to get those views collected and have them 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, established this point. Because on the one hand, the legislature in Wisconsin decided we're going to do away with public sector agency Official Subject to Final Review fees for school teachers and for government workers, but we're going to keep it for public safety officers, police officers, firefighters, because we determined there is a 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 end up coming through the collective bargaining process, where firefighters work out negotiated rules to establish what is a safe way to fight a fire. CHIEF JUSTICE ROBERTS: And all of that would still survive if the Petitioners prevail, unless your basic argument that if you do away with agency's agency fees, the unions are going to collapse and not be in a position to negotiate those safety requirements. MR. FREDERICK: Chief Justice, the necessity standard has never been the standard when the government is operating as employer or proprietor. It has always been a case that you would judge the agency the government's decision on the basis of what is appropriate or reasonable. And if you look at it from that standard, what the firefighters are saying here is that it's actually essential to have agency fees, because they are using those fees to benefit all of the workers in the Alderson Reporting Company Official Subject to Final Review in the unit through getting additional equipment that the county may not be able to afford, additional training so what when they're called upon to fight a fire 5
CHIEF JUSTICE ROBERTS: I'm sorry. They're getting additional equipment that the county may not be able to afford?
MR. FREDERICK: That's right. The union members and the nonmembers of the union in the in the unit are putting their money together through the agency fee process so that the union is supplying 12
JUSTICE BREYER: There's something other than that. That would be the same as Justice Scalia's question which raised an issue, and we heard it before. Your your your last colleague mentioned this. California needs this rule that it has, 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, et cetera. Now, the Chief Justice said, I can understand that argument if the alternative is the union is destroyed, because then there's nobody. And you say that that argument's a good argument because they're going to buy fire trucks and some other things. Is there anything else that backs up that Official Subject to Final Review argument? MR. FREDERICK: Sure. JUSTICE BREYER: I think it's important, and I'd like you to explain it. MR. FREDERICK: Yes. The flip side is that the State briefs and the City briefs that have been submitted in this Court note 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 fee fee system was put into place, and that enabled the City to better deliver transit services, school services, and the like. So you have both the positive story by JUSTICE SCALIA: I I don't understand that. I just absolutely don't understand it. Why why would agency fees enable the city to do things that it couldn't do before? MR. FREDERICK: Because it enables all of the workers to know they are making a shared sacrifice for the purpose of working together to establish a coherent position with their employer. That's JUSTICE SCALIA: You say that, but I it doesn't mean anything to me. MR. FREDERICK: I understand Alderson Reporting Company Official Subject to Final Review
JUSTICE SCALIA: You have a union bargaining, and the city says no. And you're saying that if there are enforced fees to the union, the city will say yes?
MR. FREDERICK: No. What I'm 6
JUSTICE SCALIA: I I see no connection whatever between 8
MR. FREDERICK: Well 9
JUSTICE SCALIA: what the city is willing to to give in collective bargaining and whether you have agency fees.
MR. FREDERICK: Justice Scalia, all I can report on in the absence of a factual record because this was basically brought as a facial challenge is what is in the amicus briefs. In cities, States, school districts, hospitals that are managementside have supported agency fees because they find it to be a more workable system by having 19
CHIEF JUSTICE ROBERTS: Well, I 20
MR. FREDERICK: employees buy into the policies that are being established 22
CHIEF JUSTICE ROBERTS: I 23
MR. FREDERICK: through the collective bargaining process.
CHIEF JUSTICE ROBERTS: It sounds to me like Official Subject to Final Review your argument cuts exactly the opposite way. The the problem that's before us is whether or not individuals can be compelled to support 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 are opposed to particular funding. That's why they don't want to join the that's why they don't want to join the union, because the union is pushing that. But you say you should force them because then the union will prevail, contrary to the objecting employee's views.
MR. FREDERICK: No. What I'm saying, Mr. Chief Justice, is the States can make rational and reasonable judgments that for their workability of a system, they can have an agencyfee process. Abood recognized 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 coming up with a system that's fair for everyone.
JUSTICE GINSBURG: Mr. Frederick, you didn't ask for this judgment. It was thrust on you, this judgment on the pleadings. You did say you wanted to Official Subject to Final Review make a record in the district court. If you had had that opportunity to develop a record, what would you have put in it?
MR. FREDERICK: Well, the first thing I would have put in, it would have been a response to Justice Kennedy's question, which is that Ms. Friedrichs has said publicly she's happy 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 lead plaintiff who has said publicly she agrees with the union's positions on pay.
CHIEF JUSTICE ROBERTS: Can you can you do you think you can find one employee who doesn't?
MR. FREDERICK: No. I think that that's the point, Mr. 18
CHIEF JUSTICE ROBERTS: You don't think.
MR. FREDERICK: No. I think that there are undoubtedly there are undoubtedly issues in a hundredpage collective bargaining agreement in which reasonable people can say, we don't like where the bargain got struck. But the point here is government workability and assessing the reasonableness of the government's Official Subject to Final Review position.
JUSTICE BREYER: Do you think you can I mean, obviously one thing that's come up is I know that you're right on this the Thaler law was a mess. It was strike after strike. But what you would like to show is that that approach, compared to the assessment of wage, hour, and workingconditionrelated fees, that the latter makes an improvement in the coherence of the union's position, and therefore there will be of your strikes. That's something like that is what you're arguing, and I would guess that people would have written articles about that now, and and if that's so.
MR. FREDERICK: Well, Justice Breyer, I guess the question is, are you going to decide a case of this constitutional significance on the basis of a hypothesis based on 19
JUSTICE BREYER: All right. My argument to you was, do you want to put information in the record on that point?
MR. FREDERICK: I think that is a one of many points that a record would be helpful, but let me just say that we're talking here 25
JUSTICE SOTOMAYOR: Mr. Fredericks, this is Official Subject to Final Review the 2
JUSTICE KENNEDY: I I suppose 3
JUSTICE SOTOMAYOR: this is the 4
JUSTICE KENNEDY: Mr. Fredericks, we I suppose, Mr. Fredericks, we could assume that a State is always benefitted and and is more efficient if it can suppress speech.
MR. FREDERICK: And your decision in Garcetti, Justice Kennedy, allowed for the suppression of the speech by the prosecutor who objected 11
JUSTICE KENNEDY: That was in the workplace. It doesn't apply to merit pay. It didn't apply to the protection of underperforming teachers. It it didn't it didn't apply to classroom size. It didn't apply to educational objectives.
MR. FREDERICK: Those are all classic workplace situations.
JUSTICE SOTOMAYOR: Can you can you 19
MR. FREDERICK: You are talking about workplace 21
CHIEF JUSTICE ROBERTS: Justice 22
MR. FREDERICK: speech 23
CHIEF JUSTICE ROBERTS: Justice Sotomayor.
JUSTICE SOTOMAYOR: Can we go back to this issue of burden? Official Subject to Final Review There are a lot of assumptions underlying your adversary's position, whole set of questions: Can the union survive? Hold on. I have about ten of them. Is it necessary? And your adversary says you or one of my colleagues has said you bear the burden. But this is an overturning of a decision on stare decisis, isn't it?
MR. FREDERICK: That's correct. And the point 12
JUSTICE SOTOMAYOR: And what burden do you have, or is it your adversary who has to show no reliance interests that the foundation is wrong, et cetera?
MR. FREDERICK: We submit that, given the fourdecade history, they 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 and Justice Kennedy, back to your point. I appreciate that a prosecutor's memo might be viewed in your eyes as workplace speech whereas the teachers' position about what size the classroom might be may not seem the same way as workplace speech. But from of government's perspective, I think you have to Official Subject to Final Review assess that on the basis of the reasonableness of the system that the government 3
JUSTICE ALITO: Well, no, Mr. Frederick 4
JUSTICE KENNEDY: You're again talking about a whole class of persons whose speech has been silenced, not just one person.
MR. FREDERICK: Well 8
JUSTICE KENNEDY: Big difference.
MR. FREDERICK: their speech isn't silenced. They are paying a service fee so that a 11 the exclusive representative can negotiate their health and welfare benefits, their mileage reimbursement, a whole set of things that voluntary teacher transfer policy, the questions about when teachers have to show up, how long their duty breaks dutyfree breaks are during the course of the day. These are all relatively mundane points. I I think you would agree with me. And there's nothing in the agency fee process that suppresses the ability of teachers to speak out publicly, and even within the process because the law itself allows for merit pay to be a subject of bargaining if a minority of the teachers can convince the majority that this is a position that the teachers ought to take.
CHIEF JUSTICE ROBERTS: Mr. Frederick, your Official Subject to Final Review your I think you would at least agree we're dealing with some sensitive and important constitutional issues. What is the the burden on the union that counter weighs against those of simply requiring optin as opposed to optout? At least then you you ensure that people are making a conscious decision about supporting the union before they're compelled to do that. MR. FREDERICK: 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 person who wanted to opt out, that that was in itself a core question. CHIEF JUSTICE ROBERTS: And what you're saying, it's easy for the person to check a box saying I opt out. It's also easy to check a box saying opt in. MR. FREDERICK: It's administratively actually, in a system where the overwhelming majority and we're talking about more than percent of the people are paying the fees, even those that are nonchargeable fees under the Lehnert line to support political activities, it's administratively much easier to count a smaller number. And the question is whether the suppression Official Subject to Final Review of their constitutional rights is such as to rise to the level of compulsion. Here we would submit that where there's a onepage checkbox, they can send it in, they are able and every Petitioner on the other side has successfully opted out of paying those that the burden is on them to show that the government has made an unreasonable choice as to the kind of administrative scheme that's been established. JUSTICE ALITO: Well, optin is optout is not always as easy as you as you say. In one of our prior cases, I think that anybody who wanted to opt out had to send a certified letter within a certain period of time. Now, suppose somebody says I don't want to pay this year. I don't want to I I never want to pay. What is the justification for saying that person has to opt out every single year? MR. FREDERICK: Well, let me just say that the perpetual opt out is not an issue in this case. And it 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, there are reasons why that might be appropriate. But here, having an Official Subject to Final Review 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 chargeable and not chargeable. So from the perspective of getting notice to the potential objecting member, it allows more flexibility. Thank you, counsel.
MR. FREDERICK: Thank you.
CHIEF JUSTICE ROBERTS: General Verrilli. ORAL ARGUMENT OF GEN. DONALD B. VERRILLI, JR. FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court: Let me begin by summarizing the three fundamental reasons why Abood should be reaffirmed. First, in the four decades that Abood has been the law, this Court's jurisprudence in the area of of employment relations, First Amendment jurisprudence in the area of employment relations has converged with Abood in a way that fortifies its foundations and does not erode them, because what those cases have recognized is when the government is acting as employer managing the workforce, it should receive reasonableness review in order to give it the latitude Official Subject to Final Review 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 20 States have enacted and enforced laws that allow the public employers in those 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 for which they adopt collective bargaining. And the reliance goes far deeper than those State laws and the thousands of contracts affecting millions of people that are based on those laws. In those States, the agency fee requirement has worked its way, woven its way into the fabric of the relation between workers and management and the public's fear. In those 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 employees. And if you were to take those away, you're going to disrupt those longterm relationships that have developed over time, and the expectations that have developed over time, and you're going to replace them Official Subject to Final Review 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 the unions are likely to try to do that is through trying to convince employees that you 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 employer perspective now, in a time of budgetary constraints, when difficult decisions have to be made and cuts have to be made. It's of great benefit to the employer, to the government as employer, to have the union participate in those judgments so that they are perceived as fair as the 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 reliance interests go very deep here. And then the third point I would make is that we're talking about overruling a precedent of years' standing. There need to be needs to be a showing of changed circumstances, it seems to me. Now, with respect to the question of of the role that agency fee the role that agency fees Official Subject to Final Review play in the process, I think it is quite important, and this goes to a point you raised, Justice Scalia. Abood never said, and no case since Abood has ever said, that agency fees are necessary to union survival. Abood couldn't have said that, because when Abood ruled as it did, TaftHartley 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. Employees get to decide whether the agency fee will help them achieve their workplace goals. And what the Court said in Abood was that public employers ought to have the same kind of choice to respond to workplace needs and local conditions that prior employee CHIEF JUSTICE ROBERTS: The the fact that Abood has been around for years, does it affect your point at all that the main justification for Abood that's being advanced today is one that Abood did not adopt? GENERAL VERRILLI: I CHIEF JUSTICE ROBERTS: Pickering justification, that's what I hear most prominently in the presentations, and yet Abood did not even cite Pickering. GENERAL VERRILLI: I I respectfully Official Subject to Final Review disagree with that as a technical matter. I think Abood did cite Pickering. And if one looks at the briefs in Abood, the parties on both sides were arguing Pickering. But beyond that, I think CHIEF JUSTICE ROBERTS: In in in terms of that, but in terms of the substantive analysis, it can't really seriously be called a Pickering case. GENERAL VERRILLI: No. But I think it shares 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 Abood, 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 conditions on speech. JUSTICE ALITO: Well, Pickering is Pickering is the heart of your argument, so I 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 termination or 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 a prospective Official Subject to Final Review rule that 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 a statement. GENERAL VERRILLI: Let me take JUSTICE ALITO: So as to the as to the latter GENERAL VERRILLI: Yeah. JUSTICE ALITO: there are circumstances, are there not, in which the Department of Justice could terminate or take an adverse employment action against a DOJ employee for something that that employee says as a citizen on a question of public concern. That could be done, could it not? GENERAL VERRILLI: Yes. JUSTICE ALITO: Are there any circumstances in which the Department of Justice could compel an employee to make a statement GENERAL VERRILLI: I can't JUSTICE ALITO: as a GENERAL VERRILLI: I I can't think of one, specifically. JUSTICE ALITO: as a as a private citizen? GENERAL VERRILLI: I can't think of one, but Official Subject to Final Review that goes right to the difference, right to the difference between government acting as employer, managing the workplace, and government acting as sovereign, regulating the citizenry. In the latter situation, what this Court's 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 in his role as citizen, and that would get exacting scrutiny. And that so that I think that's the key. We're not arguing that Abood applies of its own terms. We're arguing that there's an insight that underlays Abood, and it underlays Garcetti, and frankly, it underlays 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, that that affiliation requirement can be upheld. That, again, is not exacting scrutiny; it's reasonableness. Every case lines up along that axis. And so and I I think that's the key point about Pickering. And if I could, I just want to address a Official Subject to Final Review couple other points.
JUSTICE ALITO: Well, I when when 3 when a union is bargaining about a matter of of public concern, you're saying that that's that is not the same as commenting on a matter of public concern?
GENERAL VERRILLI: No. What I'm saying is that it occurs in the context of the the collective bargaining relationship, which is a which is it has to be subject to a different set of constitutional standards. It has to be; 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's going to occur, and what topics can be discussed.
JUSTICE SCALIA: All of that is true. Nobody nobody denies that. But the problem is that it is not the same as a private employer, that what is bargained 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 bargained for is a matter of public interest. Official Subject to Final Review GENERAL VERRILLI: But I guess what I would say about that, Justice Scalia, what I read this Court's cases as saying in the employee speech context, in the employee petitioning context, in the political affiliation context, is that you yes, it's not wholly free of First Amendment scrutiny. But recognizing the government's interests as employer and prerogatives as employer, you apply reasonableness review and not the exacting scrutiny that applies when government is regulating as a sovereign regulator. JUSTICE BREYER: I guess isn't it is you may know the case in which government as 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 institution's job, i.e., the public interest. GENERAL VERRILLI: Yes. Certainly, certainly. That's why that's why I think there was no doubt in Garcetti that the speech was not a matter of public concern. And I could have said the same thing in Borough of Duryea and 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 is between government acting as employer managing Official Subject to Final Review the workforce, and the government as sovereign regulating the citizenry. And I respectfully submit that that that that distinction applies with equal force here, and especially given the stare decisis considerations that that ought to govern this Court's decision in this context that that is more than sufficient to uphold, to reaffirm Abood. Because as I said, what this Court's cases have recognized through all the public employer context is the same principle for which Abood stands.
JUSTICE SOTOMAYOR: General, you seem and everybody seems to equate government subsidy with government speech. Do you think our cases give government subsidy the same analysis as they give compelled speech or compelled silence?
GENERAL VERRILLI: May I answer, Mr. Chief Justice?
CHIEF JUSTICE ROBERTS: Sure.
GENERAL VERRILLI: What I would say about that, Justice Sotomayor, is that in this context, the subsidy goes to the process of contract formation and contract administration within that collective bargaining context that I described earlier, that of necessity, a different First Amendment standard has to Official Subject to Final Review apply to. Thank you. CHIEF JUSTICE ROBERTS: Thank you, General. Three minutes, Mr. Carvin. REBUTTAL ARGUMENT OF MICHAEL CARVIN ON BEHALF OF THE PETITIONERS MR. CARVIN: Thank thank you. As to the absence of a factual record here, it's important to point out that we gave them an amended answer where they could make any allegation they wanted. And at page of their socalled opposition, it said, to quote, "The unions do not oppose the entry of a 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 union. But they didn't make any such allegation in their answer. They didn't make any such allegation in response to Justice Ginsburg's question, and they've got all the facts and terms of the union's fiscal wellbeing. That's because they can't make such an allegation in the real world. How do we know that? Twentyfive states prohibit agency fees. Not one union. Read the amici. See if you can see one example of the union capitulating Official Subject to Final Review because of that. The federal government doesn't allow agency fees. And only a third of the members are union members, and yet, that that union survives. Whereas here, we have 90 percent union membership, and Mr. Frederick said 90 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. 29 U.S.C. 6 164(b) allows excuse me prohibits agency fees if the State prohibits. So it allows states to prohibit agency fees. Conversely, it preempts states that seek to require agency fees. So the Federal policy, not only with respect to their own workforce, but to the respect of the private workforce, is contrary to agency fees. In response to Justice Kennedy's question, yes. There's a stark difference between single personnel decisions and group decisions. NTEU, 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, Official Subject to Final Review because they can't possibly show that agency fees will lead to the end of the union. And contrary to my brethren, that's the only thing that matters. We're talking about the the government's interest as an employer. All they care about, according to Abood, is 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 and have a 13
JUSTICE SOTOMAYOR: So what do you do with the law enforcement people who submitted their brief who said the unions actually do training. They provide equipment the county can't afford with fees. So they're what the 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.
MR. CARVIN: I am 22
JUSTICE SOTOMAYOR: The unions in California do teacher training.
MR. CARVIN: Exactly, and they do fire training. They do safety training. Can you think of Official Subject to Final Review something that's more a matter of public concern, that's more of an ideological point, that's more important? And yet they dismiss these as somehow prosaic issues. They're basic to our democracy, and that's why we have an absolute right not to subsidize it. No one's arguing that these JUSTICE SOTOMAYOR: Why? Why? If you're receiving the benefits of it, why? It's it's your benefit. You may disagree with that judgment MR. CARVIN: Right. JUSTICE SOTOMAYOR: but and you and you can speak about it MR. CARVIN: Because there's JUSTICE SOTOMAYOR: but why is it hurting your First Amendment right if you can speak? MR. CARVIN: There's a great 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 view is a right to demand that the other side subsidize their views on these essential questions of of basic public importance. CHIEF JUSTICE ROBERTS: Thank you, counsel. The case is submitted. (Whereupon, at a.m., the case in the Official Subject to Final Review abovetitled matter was submitted.) Official??SubjecttoFinalReview A a.m 1:14 3:2 82:25 ABA 37:21 abandon 15:18 ability 16:7 66:20 able 8:11 9:16 11:8 13:13 26:2 46:2 48:20 58:2,7 61:5 68:4 Abood 7:15 17:20 18:14 21:2,7 29:23 30:1,5,7,19 31:2,2,8,10,20 31:22 32:6,7 32:18,20 34:22 35:2,12,15,16 45:9 48:9,12 53:22 54:1 56:15 61:17 67:11 69:16,17 69:21 72:2,3,4 72:5,11,16,17 72:18,23 73:1 73:3,12 75:12 75:14 78:8,10 80:8 81:6 Abood's 3:14 29:24 aboveentitled 1:12 abovetitled 83:1 absence 60:13 79:8 absolute 37:21 82:5 absolutely 14:1 37:20 43:10 59:16 abstract 33:8 abstraction 33:15,16 accept 33:4,5 acceptable 68:21 accepts 12:24 accommodation 25:6 accommodati... 49:21 achieve 70:9 72:10 achieving 23:3 Act 7:4,6,11 10:24 acting 8:7 9:14 69:23 73:13,15 75:2,3,6,8 77:25 action 6:13 42:7 74:11 activities 28:5 35:4 36:18 47:23 67:23 69:3 activity 11:1 26:10,11 34:4 actors 13:8,9 acts 8:3 actual 41:16 42:21 50:25 addition 47:25 additional 58:1 58:2,6 address 20:23 38:2 39:14 75:25 addressed 49:25 adequate 22:25 23:4 adequately 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ahead 25:15 27:4 40:19 al 1:3,7 3:5 ALITO 26:14 39:19,21 47:18 48:11 66:3 68:9 73:17 74:6,9,16,20 74:23 76:2 allegation 79:10 79:17,18,21 allocated 47:1 allow 3:20 17:7 70:5 80:1 allowed 64:9 allows 6:8 66:21 69:5 80:11,12 alterations 56:22 alternative 58:21 altogether 14:11 amended 79:9 Amendment 3:15,18 6:2,5 6:19 7:19,24 8:20 9:19 13:22 18:8,9,9 19:4,7,10,22 20:4 21:19 30:24 31:6 32:22 34:3 37:22 39:7 54:2 69:19 73:11 77:6 78:25 82:15 America 43:8 American 26:15 27:22 amici 79:24 amicus 1:25 2:14 60:15 69:11 amount 38:8 46:25 analysis 21:20 30:8 73:6 78:15 annual 69:1,2 anomalous 62:8 answer 18:16 20:20 38:9 48:3 78:17 79:10,17 answered 7:8 anybody 21:16 68:11 apart 28:6 apologize 7:5 APPEARAN... 1:15 Appendix 54:12 applies 70:2 74:1 75:12 77:9 78:4 apply 6:3 8:8 21:22 64:12,12 Official Subject to Final Review assess 26:5,5 ban 15:18,19 bar 12:6 28:21 basis 8:24,25 appreciate assessing 62:25 assessment 63:6 brief 49:16 57:5 approach 63:6 assessments appropriate bear 65:6 briefing 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extraordinarily entire 27:11 exaction 21:11 extremely 18:21 fiscal 79:20 exactly 5:11 feels 45:5 fits 31:9,10 entirely 11:4 eyes 65:22 fees 4:7,8 7:13 flexibility 47:10 entitled 30:24 entity 12:9,11 F flip 59:5 entry 79:12 example 4:8 9:4 fabric 70:16 focus 15:20 equal 78:4 facial 60:14 equally 33:13 fact 4:1 5:12 following 33:17 follows 69:1 equate 78:13 force 4:17,20 equipment 58:1 examples 54:13 excise 25:7 erode 69:22 exclusive 3:21 forced 3:24 erroneous 18:14 factfinding formation 78:22 facts 79:20 forth 44:20 80:8 erroneously factual 22:17 fortifies 69:21 forum 53:8,10 error 56:2 excuse 18:3 especially 78:5 factually 51:14 felony 27:9 forward 22:13 espouse 52:20 Ferguson 33:10 found 18:6 ESQ 1:16,18,21 executed 20:13 fair 56:8 61:21 fight 57:10 58:3 foundation execution 20:14 final 41:11 exist 27:21 fairly 42:12 finances 30:21 foundations essential 57:24 existed 27:22 faith 14:18 find 18:21 28:25 exists 14:19 founding 34:23 essentially 8:3,9 fall 8:7,13 four 69:17 70:4 expand 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56:6 functioning 40:3 GINSBURG group 3:12 9:25 Hold 12:16 65:4 fund 23:15 Honor 4:19 5:18 gotten 22:10,14 grudging 6:20 fundamental govern 41:19 guaranteed 44:3 Ginsburg's guess 18:6,20 government honorarium give 4:20 11:10 funded 28:2 hope 37:2 Official Subject to Final Review hospitals 60:16 interest 20:25 host 28:24 imposes 9:5 Joint 54:12 hostile 36:23 imposing 6:23 JR 1:23 2:13 hotbutton impossible interests 17:24 judge 57:19 hour63:7 judges 19:9 hours 34:1 improperly judgment 61:24 housing 47:2 improvement Hudgens 32:23 judgments inadvertence interpretation Hudson 69:1 judiciary 11:11 huge 30:7 74:1 inapplicable invented 34:15 hundredpage involve 30:18 jurisdiction incentives 71:2 hundreds 11:12 incident 37:6 involved 19:23 jurisprudence incidents 19:15 hurting 82:14 include 54:15 hypothesis includes 15:6 involves 47:13 Justice 1:24 3:3 including 33:20 hypothetical increase 22:19 involving 11:19 indications isolated 43:20 issue 23:12 38:3 I individual 19:17 i.e 77:16 idea 18:7 53:7 individually 4:3 ideological 3:13 individuals 61:3 inflate 38:18,20 issued 49:24 illegal 23:14 influence 27:11 issues 12:25 imagine 22:6 information impasses 14:18 impinges 4:2 infringement implications inherent 11:6,20 import 62:10 inhibition 19:18 items 27:20 importance initial 18:18 J justification important 13:5 input 56:10 James 34:13 insight 75:13 January 1:10 insignificant Jefferson 34:12 jeopardy 35:10 insist 53:23 justifications instance 15:6 job 51:19 75:20 institution's justified 4:4,8 Johanns 23:19 justifies 30:10 impose 7:15 integrated 28:22 join 37:18,21 justify 73:16 Official Subject to Final Review K Knox 30:7 31:19 lesser 8:8 9:9,10 Kagan 7:2 8:1 looks 73:2 maximum 71:3 L let's 4:22 20:16 20:17,17,18 lot 12:8 17:25 18:5 19:8 mean 18:11,23 19:5,15 27:17 labor 7:1,4,6,11 letter 68:12 level 10:17 low 51:3 lasted 29:6 lunch 54:21 meaning 13:1 :21 Kagan's 20:21 latitude 69:25 70:7 levels 12:8 leverage 8:10 M means 38:10 52:22 keep 57:2 law 4:22,24 Madison 28:16 meant 8:8 Keller 35:3,9,14 leveraging 10:4 media 44:19 main 72:17 mediate 14:18 Kennedy 5:19 major 34:7 meet 14:17 16:6 life 50:9 meeting 47:25 limiting 7:22 majority 42:15 member 4:25 line 9:11,21 members 4:24 lawrelated 37:8 making 6:15 laws 70:5,13,14 lawsuit 5:17 lawyer 37:1,7 lines 32:22 lawyers 36:7,8 manage 39:10 members' 22:19 list 30:3 membership Kennedy's 62:6 lead 62:10 79:16 listen 16:3 management literally 11:12 key 15:17 35:25 leave 81:18 litigation 36:12 led 49:23 memo65:21 leeway 23:25 little 26:13 mentioned 45:2 kind 6:10 28:14 legal 37:7 49:5 Lloyd 32:25 management... lobby 4:9 16:13 merit 15:1 43:2 legislative 41:11 managers 41:15 lobbying 4:15 managing 69:24 mess 63:4 legislators 14:20 MICHAEL 1:16 kinds 28:4 36:12 legislature 13:10 mandatory 35:3 local 41:15,16 Michigan 56:22 know 5:11 7:12 Marbury 28:15 micromanaging Lodge 6:14 matter 1:12 5:13 legitimate 50:4 Logan 32:24 mileage 46:20 long 26:18 49:22 legitimately million 17:15 longterm 70:23 millions 17:14 Lehnert 15:3 longer 21:25 mind 29:3 look 35:22 54:12 matters 30:18 minimize 52:12 Official Subject to Final Review minority 66:22 neglect 38:20 operating 57:18 overrule 17:10 minute 29:13 negotiate 12:23 numerous 18:22 operational minutes 27:1 O opinion 19:4 overruled 21:2 O2:1 3:1 Mmhmm26:1 object 15:10 modern 6:14 opponents 51:19 objected 6:16 moment 52:10 opportunity overruling Monday 1:10 negotiated 46:17 objecting 6:11 monetary 54:17 oppose 3:13 5:6 money 5:1 24:6 negotiating 4:3 objection 3:24 opposed 32:19 overturn 30:13 objectives 64:15 negotiation overturned 3:15 objects 73:25 obligation 15:22 neither 11:15 opposite 30:2 overturning obligations never 13:25 19:1 opposition overwhelming obviously 7:23 Moose 6:14 morning 3:4 opt 38:8,8,13 overwhelmingly mouth 37:23 occur 59:8 76:14 move 20:2 nevertheless overwritten occurring 59:10 movement 26:17 optin 67:5 68:9 occurs 76:7 mundane 54:19 new 30:4 59:9 optin/optout P odd 52:19 newspaper offense 10:13 P 3:1 optout 67:5 N offered 29:24 page 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possibly 81:1 potential 69:5 principle 5:5 persons 56:3 power 25:17 practical 41:18 perspective principles 15:8 practice 37:19 precedent 29:25 paying 26:17 Petitioner 68:4 prior 20:15 Petitioners 1:4 pointed 32:21 precisely 11:3 pays 24:5 private 5:20 6:3 pence 34:13 points 8:1 42:24 people 19:9 Petitioners' predictability petitioning 77:4 police 19:5,12 preempts 80:13 philosophically prefer 42:5 policies 54:22 phrase 11:21 preliminary physical 34:3 policy 36:13 pick 44:1 premise 8:19 problem 8:16 Pickering 9:3,21 prerogatives prescinding perceived 40:13 political 4:23 prescribes 21:20 procedure 24:4 percent 5:17 present 11:15 process 44:1,2 place 33:8 40:3 presentation percentage 55:9 plaintiff 62:10 presentations perfectly 29:6 Planned 23:22 perform 23:1 presented 48:4 programs 12:7 play 72:1 posed 51:13 performance pleadings 61:25 position 8:5,10 presents 55:3 progress 42:21 preserving prohibit 79:24 period 41:21 please 3:10 27:7 presumably prohibits 80:11 periods 47:12 permissible 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4:16,21 sensitive 67:2 restrictions 28:4 sentence 27:8 separate 23:12 requirements robust 81:8 result 29:24 role 29:4 37:6 serious 6:20 requires 11:16 results 56:20 seriously 73:7 retroactively serve 39:16 room 33:25 service 37:1 requiring 4:6,8 review 9:4,22 Scalia's 58:13 rule 7:15 11:16 scheme 68:8 services 53:24 research 54:24 school 4:4 12:21 reserve 38:23 respect 9:15 revoke 16:1 set 8:8 9:9,10 ride 4:11 rider 43:4 ruled 20:6 72:5 riders 43:6 rules 6:4 57:9 right 5:8,18 7:10 run 15:16 45:25 scope 13:23 sets 76:13 severability 54:8 score 36:16 severable 22:5,8 running 38:1,9 scrutiny 10:4,16 sexual 8:25 respectfully Rutan 10:3 share 52:21 shared 59:20 S se 45:8 shares 73:9 respects 73:21 S 2:1 3:1 search 19:5,12 shop 5:22 6:8,9 respond 25:2 sacrifice 59:20 second 18:2 20:2 safe 57:10 shops 6:4,22 Respondent safety 46:21 section 12:16 short 38:9 Respondents shortfall 28:7 Official Subject to Final Review show 51:20 52:4 sorry 9:8 12:14 sort 25:6 49:11 showing 71:23 shown 41:14,24 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small 55:9 struck 36:17 suddenly 20:22 smaller 67:24 specialized state 5:21 6:8,9 suffice 73:16 socalled 79:11 sufficient 78:7 society 27:22 specifically 32:7 structure 12:21 suggest 51:23 suggesting 13:8 Solicitor 1:18,23 speech 3:16 6:10 student 28:23 suggests 10:21 somebody 4:17 students 53:6 summarizing somewhat 28:9 subject 7:23 Official Subject to Final Review supplying 58:11 termination support 3:12 4:9 take 13:19 15:1 transit 59:12 terms 10:15 16:9 translate 16:7 treat 33:13 supported 42:12 treating 11:25 test 31:16 treatment 17:23 supporting 1:25 Thaler 63:4 thank 38:24 tricky 23:18 taken 44:4 48:6 thinking 4:22 trouble 4:23 suppose 14:25 trucks 58:24 talk 29:13 44:19 thinks 9:1 38:15 true 6:7 17:9,11 theory 35:6 third 71:20 80:2 talking 17:5 thing 33:23 Thomas 34:12 suppress 39:12 thought 10:11 try 39:14 44:12 suppresses trying 26:8 33:8 thousand 5:17 suppression things 7:14 8:10 thousands 11:12 tax 26:6 Supreme 1:1,13 taxpayer 27:25 sure 12:17 18:4 teacher 43:2 turning 30:14 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