The Supreme Court’s anti-climactic order affirming the Ninth Circuit’s ruling in Friedrichs v. California Teachers Association was, as Pacific Legal Foundation’s Deborah LaFetra put it, “a profound disappointment to non-union public employees who were this close to prevailing over the unions’ ability to garnish their wages for politicking in the guise of collective bargaining.” At issue in Friedrichs was whether public employee unions can forcibly deduct money from the paychecks of non-union members to support union activities – including political activities with which the employee may disagree. Rebecca Friedrichs and other teachers in California were faced with a difficult choice: they could give up their vocations as public school teachers or they could fight for their free speech rights. They chose the latter.

After the passing of Justice Antonin Scalia, however, the balance shifted, and a divided Court affirmed the decision below 4-4. But this will not be the last word on whether compulsory unionism violates the Constitution.

Mandatory unions and professional organizations have a special privilege: the law allows them to take money from employees, even those who would rather not give it. With that special privilege comes a special responsibility to refrain from spending that money on politics and other activities irrelevant to the group’s purposes, and to have special safeguards in place to make sure dissenters’ rights are respected.

The State Bar Association of North Dakota takes full advantage of its special privilege, but it ignores its corresponding responsibilities. My Goldwater Institute colleagues have filed a lawsuit challenging that state Bar’s use of mandatory dues to engage in lobbying efforts and other activities not relevant to the practice of law, without basic procedural protections to protect its dissenting members who would rather not see their dues put toward political purposes.

The North Dakota Bar case could be a vehicle for the Supreme Court to finally consider the constitutionality of mandatory union support as a condition of employment. Until then, states will continue to violate employees’ free speech rights by forcing them to choose between exercising their right to earn an honest living and their freedom of speech.