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

Less than two years ago, the Justice Department, under the Obama administration, had defended the constitutionality of fair share fees in the high court in Friedrichs v. California Teachers Association. In March 2016, the court deadlocked in the case after the death of Scalia. Rebecca Friedrichs was represented by Francisco's former Jones Day partner, Michael Carvin.

The Justice Department's flipped position on the union fees question is the third time this term that Main Justice, led by U.S. Attorney General Jeff Sessions, has changed the government's course in a major case. The department now supports a class action ban in workplace arbitration agreements and Ohio's system for purging from its registration rolls inactive voters.