Anti-union groups hastened to explore this possible opening, and in the 2014 case of Harris v. Quinn, the Court faced a new challenge to “fair-share” payments by a group of home-health workers funded by a federal-state program. Though the workers were hired and supervised by the clients whose homes they worked in, the Illinois legislature voted to allow them to vote for a bargaining agent, and they chose the Service Employees International Union. Plaintiffs objected to the fees, and asked the Court to overturn Abood once and for all. In the end, however, the majority chose not to overturn Abood; instead, it reasoned that the home-health care workers were not “full-fledged” state employees, and thus the state had no need for “labor peace,” as it might at a school or a government office.
But beyond that, Alito’s majority opinion suggested that a majority was sick and tired of this Abood nonsense, and might be grateful if someone—anyone—would bring them a case that would drive a stake through its heart. The essence of the argument is that all expenses of public-employee bargaining are “political,” because public-employee benefits, salaries, and pensions are paid for by taxpayers. Thus there is no “ordinary” collective bargaining, and financing any union dealings with government—even, say, a message saying, “Our union member X was discharged in violation of the contract”—is forcing objectors to pay for “ideological speech.”
In a sharp dissent, Justice Elena Kagan warned that “[t]he Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”
Nonetheless, a hopeful anti-union group—the Center for Individual Rights, represented by right-wing powerhouse lawyer Michael Carvin—is pressing another opportunity upon the Court. “This case is an excellent vehicle for reconsidering Abood,” the cert petition notes; indeed so, because public-school teachers are unquestionably “full-fledged” state employees, and the petitioners can’t win if Abood is good law.
This issue has an overwhelmingly partisan valence. For good or ill, public-employee unions are part of the base of the Democratic Party, and Justice Alito has made very clear that he sees the “fair-share” issue through a partisan lens. (At oral argument in Harris, he interrupted the Solicitor General’s argument to suggest that what was really going on here was a crude Democratic power play: “I thought the situation was that Governor Blagojevich got a huge campaign contribution from the union and virtually, as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting—what was it, $3.6 million into the union coffers?”) An end to fair-share payments will mean a reduction in the strength of the unions, both in collective bargaining and as political actors. Many present members will continue to join the union even without the “fair share” payments. As new workers enter the workforce, though, many will make a cold judgment: Why should I pay the union to do something for me it’s obligated to do anyway? Alito’s opinion in Harris suggested that if unions are so all-fired great, employees will pay without being required to; Kagan tartly asked, “Does the majority think that public employees are immune from basic principles of economics?” If those laws apply, union membership will drop.
The Roberts Court does not always reach conservative results; but when the two parties have dogs in a fight, the majority finds itself mightily tempted to find that the GOP’s preferred outcome is also the law. Overturning Abood would, as Kagan noted, be a radical step. The temptation must be great, and even if the Court declines this chance, others will come.