June 30, 2014

In many states, public employees are required by law to pay union dues—regardless of whether they agree with the union’s advocacy efforts. This arrangement has long been a subject of legal disputes. On Monday, the Supreme Court ruled on the most recent battle, Harris v. Quinn, a case brought by eight home-health-care workers in Illinois. These workers, who were paid with Medicaid funds, argued that they should not be required to contribute to a union for public workers. Justice Samuel Alito, writing for a five-to-four majority, found that these workers were only “partial public employees”—a new category—as distinct from, say, nurses at a county hospital, and so didn’t have to pay union dues. He left for another day the broader question of whether any worker should be required to pay the dues. In that sense, it was a narrower decision than many had expected. But it still leaves public unions in a precarious position.

The home-health-care workers had argued that being required to pay union contributions violated their First Amendment rights. Just as the government couldn’t stop them from expressing their views, they argued, it shouldn’t force them to contribute to organizations—like unions—that don’t reflect their views. Illinois had argued that unions require participation so that they can secure better working conditions and compensation for all workers, not just for the ones who want to pay dues. Collective bargaining is only possible if it is genuinely collective; allowing individual workers to peel off from the group will result in, at first, a huge “free rider” problem—some workers will get the benefits of collective bargaining without having to chip in—and, eventually, the collapse of public unions.

The Supreme Court’s response to this problem, over the years, has been to split the difference. The key precedent comes from 1977, in a case called Abood v. Detroit Board of Education. There, the Court held that public employees cannot be forced to finance a union’s political expenditures (such as running ads, lobbying, or supporting electoral candidates) but can be forced to finance the union’s collective-bargaining activities. Like all fine distinctions, this one sometimes becomes difficult to apply. But it makes conceptual sense. To be forced to pay for, say, an attack ad against a candidate you support is very different from having to pay for the collective bargaining needed to get your employer to agree to the terms of your contract. And public unions are legally required to negotiate on behalf of all workers.

Since 1977, the influence of unions has waned, and today’s Supreme Court, guided by Chief Justice John Roberts, is substantially more conservative than the Court of forty years ago. Even before the Harris decision, the Roberts Court had scrutinized public unions several times. In 2012, in Knox v. Service Employees International Union, Justice Alito wrote, in a majority opinion, that unions should have let members opt out of emergency fundraising efforts to defeat a state law designed partly to curtail public pensions. So a lot of people anticipated—and worried—that the Court would use the Harris case to further weaken public unions.

But it was not to be. Justice Alito held that, since the home-health-care workers were employed through private contracts and merely reimbursed by public funds, the Abood ruling didn’t apply to them. This means that the Abood decision’s inquisition will have to wait.

At the same time, as Justice Elena Kagan noted in a dissenting opinion, the majority could not “resist taking potshots at Abood.” If anything, that’s an understatement. Much of Justice Alito’s opinion was dedicated to deconstructing the Abood decision, repeatedly calling it an “anomaly.” Twelve pages of the thirty-nine page opinion were dedicated to examining the “path that led to this Court’s decision in Abood,” culminating in the position that the ruling had been “questionable on several grounds” and had “fundamentally misunderstood” previous case law.

The underlying message came through plainly: Dear conservative legal activists, on the off chance that you were thinking about bringing a case that allows us to overturn Abood, this might be a good time. It’s hard to say why Harris was not considered such a case. One possibility is that Justice Alito was unable to convince his colleagues to join a more disruptive opinion, so he settled for an incremental approach. (Jeffrey Toobin makes the point that the conservatives on the Roberts Court have often taken a two-step approach to contentious matters.) Or perhaps Justice Alito and company were worried that Harris—because of the idiosyncratic position of home-health-care workers as partial public employees—wouldn’t overturn Abood cleanly enough. In other words, it’s possible that the Court’s conservatives wanted to be sure that, when the disintegration of public unions is announced, it is announced loudly.

Read More: http://www.newyorker.com/online/blogs/currency/2014/06/public-unions-precarious-position.html

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