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Argument recap: Public employee unionism under fire

In the end, it may not happen, but the demise of public employee unionism was at least on the table for lively discussion in a Supreme Court argument Tuesday morning.  The case of Harris v. Quinn would only spell doom for government workers’ collective action, it appeared, if Justice Antonin Scalia could be persuaded to join in doing it in; there just might be enough other votes.

This seemed an unlikely case to even raise that issue, but raise it, it surely did.  The case only involves home-care workers who provide medical services for patients one on one, and the prospect that their activities might pose a threat to labor peace appeared remote indeed.  Several members of the Court, though, were insistent that this case raises very large issues about labor relations in the public sector — an issue that is stirring up a good deal of agitation around the country, especially in state and local government.

Aside from what was said explicitly from the bench, the atmospherics of Tuesday’s argument suggested strongly that this case has very large potential.  The mood of the Court’s more liberal members was one of obvious trepidation, and that of its more conservative members — except for Justice Scalia — was of apparent eagerness to reach anew the core constitutionality of compulsory union support among public workers.

Moreover, U.S. Solicitor General Donald B. Verrilli, Jr., talked as if he, too, perceived the case to be a severe test of public worker collective bargaining.

The precedent whose philosophical foundation was up for discussion — and that Verrilli urgently sought to be reaffirmed — is Abood v. Detroit Board of Education That 1977 decision was the Court’s first major ruling to embrace public employee unionism and the idea that a single union should represent a public unit of workers and all employees — union members or not — would have to support its core bargaining activities by paying dues.

The hearing Tuesday had only gone for  couple of minutes when a lawyer for the National Right to Work Legal Foundation, William L. Messenger, was urging the Court to overrule Abood, and thus drawing heavy questioning from more liberal Justices, like Ruth Bader Ginsburg and Sonia Sotomayor, and, soon, Justice Elena Kagan.

What would turn out to be potentially decisive, though, was the Justice Scalia appeared determined to take away from Messenger his basic argument that public employee union activity is more about shaping public policy — with implications for the First Amendment — than about the traditional union role of seeking to improve the working conditions of those it represents.

Messenger essentially was trying to make the point that anything a public employee union does is an attempt to shape matters of “public concern,” and it should not be able to compel support — even for part of the monthly dues — from workers who oppose the union’s public policy ambitions.

The home-care workers, their lawyer contended, were being coerced into financial support for a public employee union that wants to “petition the government” in their place, but in ways that some of those workers might well oppose.

That argument, though, would quickly gain the energetic support of Justice Anthony M. Kennedy, who repeatedly made an effort to push the whole argument up to the highest level of constitutional philosophy about protecting the diversity of views about what government policy should be.  Kennedy gave the impression that virtually anything a public employee union sought for its workers should be open to general public debate, and dissidents should not be coerced into supporting one side of that debate.

The policy pursuits of a public employee union, Kennedy said, inevitably affect the size of government, and that, he said, involves “a fundamental issue of political belief.”  He made it clear that he felt public debate about that issue should be robust and wide open, even for public employees who have a union that purports to speak for them.

Justice Samuel A. Alito, Jr., too, became a sharp questioner of the basic concept of public employee unionism, and left little doubt that he thought the case did involve serious issues of coercion to support public policy that some workers find objectionable.

The trend of the argument with Messenger at the lectern appeared to have alarmed Justice Kagan, who said that what was being discussed was “a radical restructuring of the way workplaces are run” throughout the country.  She noted the “passion and heat” now spreading across the country — as, for example — in Wisconsin, over the role of public employee unions.  She wondered if it was “fair” to suggest that Messenger was actually arguing that a “right-to-work law [that is, no compulsory union support) is constitutionally compelled.”

Yes, Messenger said, it is, in the public sector.

The public employee unions did have a lawyer in the mix, Washington attorney Paul M. Smith, whose main point was that states must be left free to decide to have public employees represented by unions, with substantial improvement in the working conditions of those employees.

He ran into heavy questioning from Justice Alito, and then from Justice Kennedy.

The questioning — explicit and implicit — of the Abood precedent was interrupted from time to time by questions from Chief Justice John G. Roberts, Jr., who seemed to be focused primarily on whether or not this case involved who decides the pay scales of home-care workers — state officials or federal managers of the Medicaid program for the poor and disabled.  It was not clear where Roberts would be on the more basic question of public employee representation.

Solicitor General Verrilli had only ten minutes of time, but he used it carefully to continue to plead for the reaffirmation of Abood and to ensure that governments, in their role as employers of people, have sufficient flexibility to manage their own operations.  Abood, he said, had a “very powerful” record of being reaffirmed by the Court, and should be once again.  “That line,” he said, “has stood for forty years, and is entirely consistent with the First Amendment jurisprudence regarding the government as employer.”

When Messenger returned for rebuttal, he was immediately confronted by broad, philosophical questions from Justice Stephen G. Breyer, going to the basic issues of whether public employees have any right to join unions or engage in collective bargaining.

Messenger responded that there has been “insufficient” reliance upon the Court’s precedents about public employee unionism to justify the continuing validity of those rulings.  Justice Kagan sharply contradicted him, saying there must be thousands of contracts that are affected by the issues in this case.

Recommended Citation: Lyle Denniston, Argument recap: Public employee unionism under fire, SCOTUSblog (Jan. 21, 2014, 12:17 PM),