Court Monitor

Public Unions Barely Survive Court Test

The Supreme Court came tantalizingly close to ending forced membership dues in public sector unions, such as the liberal Service Employees International Union (SEIU). Public sector employees work for government, which is accountable to voters and prohibited by numerous laws from engaging in unfair labor practices. As a practical matter, public sector unions such as teachers' unions advance their own liberal political agendas.

The First Amendment of the Constitution protects against being forced to pay for political activities with which someone disagrees. No one can be forced by law to give money to a political party.

Yet an Illinois law required personal home healthcare assistants to pay dues, against their will, to a public sector union. Several workers objected and, with the help of National Right to Work, they took their case all the way to the U.S. Supreme Court.

This matter, Harris v. Quinn, attracted little attention until its oral argument before the High Court in January. Then several conservative Justices, including the swing vote Anthony Kennedy, began to question why any government worker is required to pay union dues. Their conservative questions caused panic among liberals on the Court and off. Was there a 5-vote majority for cutting off the cash flow to SEIU and all other public sector unions? Such a monumental ruling would deflate the power base of the Left.

Months passed without a decision. Anxiety among the Left grew and grew, until it became apparent that this decision would be issued on the very last day of the Term, and written by the greatest nemesis of the Left on the Court, Justice Sam Alito.

The only vote that Justice Alito did not clearly have was that of Justice Antonin Scalia, who was surprisingly critical of the case at oral argument. Whether it was Justice Scalia or another Justice who failed to deliver the 5th vote for a complete conservative victory remains a mystery.

Ultimately the Court ruled 5-4 against the union, but in a narrow way that protects only workers who are not full-fledged public employees. The decision held that the workers in this case are protected by the First Amendment against being forced to pay a union.

The union demanded fees from these workers because the union said it did not want freeloading on its services by non-union workers. But the Court rejected the union's arguments, and held that complaining about freeloading is "generally insufficient to overcome First Amendment objections."

The Court decision explained that "no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support." But the Court protected only workers who are not considered full-fledged public employees, and did not overrule Abood v. Detroit Board of Education (1977), which previously required full-fledged workers to pay dues for costs related to collective bargaining.

According to the Court, the personal assistant healthcare workers do not receive the same rights and benefits as the "full-fledged" public workers because the personal assistants do not answer to the State, but rather to their customers. Additionally, the Court noted "the State does not assume responsibility for actions taken by personal assistants during the course of their employment." As a result, the Court distinguished personal assistant healthcare workers from the employees subject to mandatory dues under Abood.

Though a missed opportunity, this narrow decision may open the door to a future decision freeing all public employees from being forced to pay dues to a union they do not support.