Supreme Court

Is the Supreme Court Gunning for Public-Sector Unions?


On Monday the U.S. Supreme Court ruled that the state of Illinois violated the First Amendment when it forced home-care workers who receive government stipends to pay union dues to the Service Employees International Union. Writing for the 5-4 majority in Harris v. Quinn, Justice Samuel Alito ruled that the state exceeded its lawful authority by treating such workers as government employees "solely for the purpose of unionization and the collection of an agency fee."

"If we accepted Illinois' argument," Alito explained, "we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support." Thus, "The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union."

It was a resounding defeat for the public-sector union movement, which no longer will enjoy the government-backed power to automatically enlist such workers in its ranks. But as Ned Resnikoff, a liberal critic of the Court's ruling, pointed out as MSNBC, the decision "could have been worse" for public-section unions.

Indeed it could. Also at issue in Harris was the scope of a 1977 Supreme Court precedent known as Abood v. Detroit Board of Education. In that case, the Court held that state employees who refuse to join the union may still be compelled to pay union dues. "'The primary purpose' of permitting unions to collect fees from non­members," the Court said in Abood, "is 'to prevent nonmembers from free-riding on the union's efforts, sharing the employment benefits obtained by the union's collective bargaining without sharing the costs incurred.'"

In Harris, the Supreme Court had the opportunity to revisit the propriety of its ruling in Abood. In Monday's decision, however, Justice Alito declined the opportunity to overrule that 1977 precedent. Yet despite leaving Abood on the books, Alito still spent nearly four pages of his Harris opinion detailing what he sees as Abood's failures and shortcomings, including the fact that "a critical pillar of the Abood Court's analysis rests on an unsupported empirical assumption," and the fact that the Court "did not foresee the practical problems that would face objecting nonmembers." As Alito put it, "the Abood Court's analysis is questionable on several grounds."

What does this sharp language mean for the future of public-sector unions, which depend on Abood for mandatory union dues? Cato Institute legal scholar Andrew Grossman, who filed an amicus brief urging the Supreme Court to overturn Abood, believes Monday's decision in Harris may signal a future ruling that "would spell the end of compulsory support of public-sector unions." As Grossman argues:

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls "Abood's questionable foundations." If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers' First Amendment rights.