The Supreme Court Case That Could Clobber Public-Sector Unions

A "radical" argument to make the entire United States a right-to-work nation

William Messenger of the National Right to Work Committee asked the Supreme Court today to hold that public employee unions are unconstitutional.

“This is—I'm just going to use the word here, it is a radical argument. It would radically restructure the way workplaces across this country are—are run,” Justice Elena Kagan said from the bench.  Since 1948, she pointed out, states have had the power to enact “right-to-work” laws that limit union power. Was Messenger arguing that “a right-to-work law is constitutionally compelled?”

Messenger didn’t back off. “In the public sector, yes,” he replied. 

His clients, home-care providers paid by the state of Illinois with federal-state Medicaid funds, had started out arguing only that they were not “employees” for purposes of coverage by the Court’s previous labor precedents. (Though they get state paychecks, they are selected and supervised by the families they serve.) But after cert was granted, their lawyers, the NRTWC’s legal-defense fund, decided instead to go for the kill shot. They want the court to hold that permitting the unions to collect fees for representing non-members—the so-called “agency fee”—violates the First Amendment.

At least four members of the Court seemed ready to reach that “radical” result. The fate of public employee unionism in the nation seemed, by the end of the argument, to lie in the hands of Justice Antonin Scalia. 

In a series of decisions dating back to the 1950s, the Court has repeatedly said that states may, if they wish, allow private and public employers to make these contracts, and a number of states do. Their backers say they make workplace relations easier—the union brings employee concerns to the state, which addresses them in an efficient way. The contracts allow the unions to receive payment only for bargaining expenses. Other things unions do—backing candidates, lobbying legislatures, conducting high-impact litigation—are “non-chargeable” expenses, precisely because they might raise First Amendment “compelled-speech” concerns.

In this case, the state of Illinois in 2003 designated the home-care workers as state employees for the purpose of collective bargaining. The workers then held an official vote, and a majority voted to certify the Service Employees International Union as their “exclusive bargaining agent.”  Non-members, like the plaintiffs in this case, pay a fee that is a set annual “chargeable” percentage of union dues.  The rationale for the agency fees is that non-union employees benefit from the contracts unions negotiate, and thus would be “free riders” if the union could not charge them.  If unions cannot collect fees, soon employees would stop joining, and they would lose their ability to speak for workers.

Here’s a summary of that “free rider” argument:

What is distinctive . . . about the “free riders” who are nonunion members of the union's own bargaining unit is that in some respects they are free riders whom the law requires the union to carry-indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.

That defense was written by Justice Antonin Scalia in a 1991 case called Lehnert v. Ferris Faculty AssociationMuch depends on whether he stands by those words today.  

The Court today is much more conservative than it was in 1991. Two years ago, in a case called Service Employees International Union v. Knox, the Court’s conservative majority sent a message to unions: You are a mistake; we will settle with you soon.  Knox called agency fees an “anomaly” under the First Amendment. It was a strong lure for lawsuits like this one.

The argument against public-sector agency fees is this: Since public employees work for government, everything they bargain about is political. Higher wages, better benefits, new work rules—all affect the state budget.  Assessing fees from non-members thus requires them to pay for political speech.

All the expenses, in other words, are non-chargeable.

Scalia appeared skeptical of that argument, but it went over with three of the other four conservatives. (Justice Clarence Thomas, as usual, said nothing.) In essence, the three conservatives seemed to think that everything in government is completely corrupt and unions are just a part of the statist conspiracy—a special interest in league with big-government Democrats.  

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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