Analysis of Oral Transcript in Davenport Supreme Court Union Fees Case

As reported in a number of earlier posts (here, here, and here), the United States Supreme Court heard oral argument today in the consolidated cases of Davenport v. Washington Education Association and Washington v. Washington Education Association.  At stake, whether the State of Washington can prohibit unions from using nonmembers' dues for political purposes unless those nonmembers affirmatively opt-in to allow their dues to be used for such purposes.

Thanks to SCOTUSBlog for providing a link to the transcript of the oral argument in these cases.  Some of the more interesting questions by the Justices in the case include:

1. Justice Breyer seeming to signal his support for the union when he asked:

If that's what they intended, then how can a State say, well, it's the union's money, we don't want you to send this little bit of your money to contribute in a campaign, but if the local swimming team wants to, or the bar association or the corporation, if they want to spend money that people have given them for totally other purposes, the compulsory bar association, well, they can do that. It's just the labor unions that can't spend the money that these people forced to belong -- you know, they have to object affirmatively -- but all the other similar organizations, they can't.

     2.    Justice Alito, on the other hand, posing questions which suggests support for the State of Washington and the class of nonmember union employees:

Well, if this money is the non-union member's money and an opt-out -- I'm sorry -opt-in scheme is not much of a burden on the unions, why should the First Amendment permit anything other than an opt-in scheme.

And later:

What's the difference between saying would you like to make a contribution, and would you like to allow us to use money that we possess for our purposes rather than returning it to us? What's the difference between those two?

      3.    Justice Scalia also not appearing to be a big fan of the union's argument:

I don't think it's content discrimination of the sort that triggers strict scrutiny when the government gives money for a particular purpose only and not for other purposes, and I also don't think it's content discrimination of the sort that triggers strict scrutiny when the government allows a private organization to use governmental power to exact money from people for a particular purpose only. That's a different ball game.

      4.  Justice Kennedy, a potential swing-vote, also seeming skeptical of the union argument:

I mean, you -- you begin by talking about the First Amendment but you, you proceed as if there are no First Amendment rights of, of workers involved at all.

And later:

You want us to consider this case as if the First Amendment rights of non-union members were not involved?

In addition to these questions, there were questions by other Justices, including Justices Souter and Stevens, which seemed skeptical that the Washington scheme interfered with the union's rights to political advocacy.  Indeed, only Justices Ginsburg and Breyer seemed to be at all sympathetic to the union's argument.

Reading the tea leaves of the transcript, I see a 7-2 decision in favor of Davenport and the State of Washington and against the Union.  At the end of the day, the Court is likely to hold that the State is free to go beyond the constitutional minimum of providing for an opt-out mechanism for union dissenters as far as the expenditure of their dues for political purposes, and doing so does not significantly burden whatever right to political advocacy the union might have.

PS