Four Pennsylvania school teachers, two Santa Clara Valley Medical Center pharmacists, and three New York school workers have filed separate suits challenging the constitutionality of state requirements permitting the unions that represent them to require them, if they do not join and pay dues, to pay a “fair share fee” (similar in amount to the dues paid by union members) toward their union representation.

In Abood v. Detroit Board of Educ., 431 U.S. 209 (1977), the Supreme Court held that fair share fees were constitutional and that employees could be compelled to pay them as a condition of employment “insofar as [they] are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Pennsylvania, California, and New York public sector employees (represented by the National Right to Work Legal Defense Foundation) seek to overturn that precedent and have the fees outlawed. They argue that the fee requirements violate their First Amendment rights.

In Friedrichs v. California Teachers Assoc., 136 S. Ct. 1083 (2016), the Court had an opportunity to reconsider its decision in Abood. The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay a fair share payment to a union whose views they did not necessarily wholly share. However, following the death of Justice Antonin Scalia, who was widely expected to cast the fifth vote against the California fair share fee requirement, the Court split 4-4. (The tie vote resulted in an affirmance of the lower court decision upholding the fees.)

President Donald Trump is expected to announce his choice to fill the Supreme Court vacancy on February 2. If, as anticipated, he nominates a conservative jurist who is confirmed by the Senate, the likelihood will increase greatly that Abood will be overturned and fair share fees will be ruled unconstitutional.