President-elect Donald Trump's choice to replace Antonin Scalia on the Supreme Court could swing the court away from union-friendly precedents, according to labor watchdogs.
An exit poll taken by NBC News showed that 75 percent of Trump voters cited the Supreme Court as an important factor in the election, including nearly 30 percent who said it was the "most important factor" for choosing the Republican. While on the campaign trail, Trump released a short list of 21 conservative jurists and scholars who he would consider for the court in an effort to woo social conservatives eager to overturn Roe v. Wade.
That appointment, however, would do more than just affect the nation's abortion laws; it could also shape the American workplace and worker freedom for years to come.
The National Right to Work Foundation and its legal arm has a number of cases at various stages of federal courts that could overturn long-standing practices of forced dues among public and private sector workers.
"The impact of Trumps' Supreme Court appointments when it comes to labor cases will be huge," foundation spokesman Patrick Semmens said. "If Trump nominates the type of justice he promised on the campaign trail, millions of teachers, first responders, and other government employees would finally be free to decide for themselves if they want to join and pay dues to a union."
Labor watchdogs are not the only ones fighting over unionization standards in federal courts. Several unions across Wisconsin, West Virginia, and other states that recently passed right to work have argued that the legislation violates the Constitution because unions are forced to represent and bargain on behalf of workers who do not pay dues.
Trey Kovacs, a labor policy expert at the Competitive Enterprise Institute, said he expects that the court will once again take up the question of whether government agencies can require union membership as a condition of employment.
"There are several union challenges to right to work. I think that's one issue to watch out for. If he [Trump] appoints a judge similar to Scalia, right to work is going to be the law of the land," Kovacs said.
The Supreme Court deadlocked on the constitutionality of coercive dues payments in the wake of Scalia's death in Friedrichs v. California Teachers Association. The case, brought by a California elementary school teacher, challenged a three-decade precedent set by the court in Abood (1977), which allowed schools and government agencies to require union membership as a condition of employment. Friedrichs' attorneys from the Center for Individual Rights argued that forced dues and agency fees violated teachers' free speech rights because they were compelled to support an organization that was inherently political.
CIR president Terry Pell told the Washington Free Beacon he was "optimistic" about the message Trump sent when he released his list of potential Supreme Court replacements.
"No matter who he picks off his list would be favorable to what we were trying to do in Friedrichs," Pell said. "We want neither a pro- nor anti-union justice, but one who is willing to consider First Amendment arguments on the merit. I think a Trump judge would see the glaring exemption in First Amendment protections [set by Abood]."
The nominees Trump proposed during the campaign stand on the opposite side of the spectrum of President Obama's nominee, Merrick Garland. As Chief Justice of the D.C. Circuit Court of Appeals, Garland ruled in favor of the National Labor Relations Board, the nation's top labor arbiter, in 18 of 22 cases. His nomination was embraced by numerous union leaders, including Richard Trumka, head of the politically powerful AFL-CIO.
Semmens said the decision to wait until after the election to hold a confirmation vote on Garland could swing the court in favor of the arguments laid out in Friedrichs.
"The next justice will be the swing vote on the issue of whether the First Amendment protects government employees from being forced to subsidize union speech they disagree with," Semmens said. "Further, that decision would open the door for other cases challenging government-granted union powers that violate the First Amendment rights of American workers."