Dr. Eastman is the Henry Salvatori Professor of Law and Community Service, and former Dean, at Chapman University’s Fowler School of Law.  He is also the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, which participated as an amicus curiae in this case.

Nearly forty years ago, the Supreme Court took a rule from the private-sector union context and, after a fairly cursory analysis, extended it to the public-sector union context.  Since private sector employees could be compelled to contribute to the costs of collective bargaining by a union, so too with public sector employees.  “Public employees are not basically different from private employees,” held the Court in Abood v. Detroit Board of Education.

But public employees are different, and that difference is increasingly being recognized in majority opinions by the high Court, two years ago in Knox v. SEIU, and today in Harris v. Quinn, both authored by Justice Alito.  As we argued in the brief we filed in Harris (and also back in Knox), collective bargaining in the public sector is inherently political.  When a public employee union bargains for higher wages and other benefits, it is arguing for a public policy that devotes more resources to programs staffed by its members than other programs.  Even a public employee union that represents every employee in every program in state government pushes a policy agenda when collective bargaining for more salary and benefits, in favor of larger rather than smaller government, higher rather than lower taxes.  Abood held that a union cannot force nonmembers to support its political and ideological expenditures that are unrelated to collective bargaining, but that distinction is really nonsensical in the public employee union context.  The unions in Knox had even argued that because all public policy affects public employee union members, the overt political activity of the unions – including campaign support for ballot measures – was simply “lobbying … the electorate.”  As such, it was related to collective bargaining and could therefore be assessed against non-union employees via compulsory union dues.  The Court rejected that argument in Knox, with a strong opinion by Justice Alito that went so far as to question whether the existing compulsory dues system violated the First Amendment.  “By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate,” noted the Court.  That line drew a strident dissent by four Justices in two separate opinions (including by the two Justices who otherwise agreed with the judgment in the case), but it was clear to Court observers across the ideological spectrum that the pro-public-union Abood regime was in serious trouble.

While not quite the stake in the heart that would kill public employee unions altogether, today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead.  At issue was whether in-home care givers could be compelled to contribute to the public employee union coffers – the annual amount in Illinois is about $3.6 million! – merely because they were paid out of state Medicaid funds (made available because Illinois found it much more cost effective to pay for in-home care than to pay for care in a medical facility).    By the same five-to-four line-up that divided over the First Amendment language in Knox, the Harris Court held that Abood could not be expanded to cover not just “full-fledged public employees” but also those who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.”  And in the process, the Court hammered another big nail in the coffin of Abood, calling its “analysis questionable on several grounds,” including some that “have become more evident or troubling in the years since” Abood was decided.

Tracing the history of the precedent on which Abood relied, Justice Alito cited a dissenting opinion by Justice Douglas, for example, which had urged a narrow interpretation of that precedent lest the Court “give carte blanche to any legislature to put at least professional people into goose-stepping brigades [that] are not compatible with the First Amendment.”  Ouch.

But there is more.  “Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends,” wrote Justice Alito for the Court.  “Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” … or nonchargeable,” he added, setting up one of the critical elements for overruling prior precedent despite stare decisis concerns.  And “[f]inally, a critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption,” the Justice asserted.  One can almost see the ghoul of Abood walking ever more slowly, arms outstretched, as its legs are shot out from under it piece by piece.

There is even more.  “A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked,” noted the Court.  Moreover, a compulsory “agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join,” and “[n]o such showing has been made.”  These two statements cut right to the heart of arguments that have previously been relied upon to uphold compulsory union dues.  The ghoul is left crawling along on stubs.

The dissent authored by Justice Kagan appears to recognize the weakened state in which the majority’s opinion leaves Abood, trying mightily to reconcile her conflicting claims that Abood requires that the Illinois law be upheld and that Abood remains good law even after the Court’s decision striking down the Illinois law.  And she pretends even more mightily that Abood remains good law.  “Today’s majority cannot resist taking potshots at Abood,” she writes, “but it ignores the petitioners’ invitation to depart from principles of stare decisis.”  Nor could it, she claims, because “[o]ur precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”  Justice Kagan then devotes half of her twenty-five-page dissenting opinion trying to convince at least one member of the Court’s majority why the “Court’s view of stare decisis makes plain why the majority cannot—and did not—overturn Abood.”  The majority “does not pretend to have the requisite justifications to overrule Abood,” she claims, adding that “Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so. Yet they will also know that the majority could not, even after receiving full-dress briefing and argument, come up with reasons anywhere near sufficient to reverse the decision.”  “Abood remains the law,” she proclaims, as if saying it repeatedly will make it so.

Maybe Justice Kagan is trying to reveal an internal dissension among the Justices who joined the majority opinion, trying to expose that there is at least one of those Justices who will not overrule Abood outright.  Or maybe instead there was merely one or more Justices in the majority who thought Abood could properly be distinguished and therefore its overruling must wait until the next case.  Either way, a ghoul that can no longer walk is not much of a threat, and this ghoul is no longer even a walking dead.

Posted in Harris v. Quinn, Harris v. Quinn symposium, Merits Cases

Recommended Citation: John Eastman, Harris v. Quinn Symposium: Abood and the walking dead, SCOTUSblog (Jun. 30, 2014, 6:09 PM), http://www.scotusblog.com/2014/06/harris-v-quinn-symposium-abood-and-the-walking-dead/