By reversing the federal government’s long-held position that “fair share” fees paid to public employee unions by nonmembers are lawful, the U.S. Justice Department sent an early holiday present to Justice Samuel Alito Jr., who has led recent attacks on the constitutionality of the fees. But maybe, in a long shot for unions, the late Justice Antonin Scalia will have the final word.

Noel Francisco, the U.S. solicitor general, on Wednesday filed a friend-of-the-court brief that urged the justices to overrule a 40-year-old decision, Abood v. Detroit Board of Education. That decision rejected claims that the fees, paid to cover nonunion members’ share of the costs of collective bargaining, violated the First Amendment.

Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ The National Law Journal

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