Monday, June 30, 2014

Sharply Divided Court Takes Another Shot at Public Sector Fair Share

A sharply divided Supreme Court ruled today in Harris v. Quinn that a state cannot require nonunionized home-healthcare workers, or personal assistants, in the state's Medicaid program to pay "fair share" union dues.  The majority held that a fair-share-dues requirement for non-union members violates their First Amendment association rights.

The ruling is a victory for non-unionized home-healthcare workers, and for anti-union types generally.  But on the other hand, the ruling did not go as far as it might have in striking public sector fair share requirements.  The majority took another shot at public sector fair share requirements (it earlier took a shot in Knox), prompting the dissent to go to great lengths to defend the constitutionality of those requirements, and setting up those requirements (yet again) for reconsideration.

In other words, the majority strongly criticized Abood, but did not overrule it.  The dissent vigorously defended it.  We can expect more challenges, with the Court moving to overturn it.  (Abood held that a state may require fair share fees for non-union members in a public sector union in the interests of preventing free-riding and labor peace.)

We posted most recently on the case here.

The majority (penned by Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) held that personal assistants were not full state employees--they're supervised principally by the individual clients they serve.  Moreover, state law limits the union's role in representing them.  As a result, the Court said that Abood's rationales don't apply, and declined to "extend" Abood.  The Court applied "exacting scrutiny" and held that the state fair-share requirement failed.

The dissent (penned by Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor) disagreed that personal assistants were different than public employees for Abood purposes.  Dissenters would have applied Abood in a straightforward way and upheld the state fair-share requirement. 

But while the majority and dissent jousted over the status of personal assistants (in relation to public employees in Abood)--and while the majority ultimately hung its hat on its distinction between public employees and personal assistants--it was clear that the real struggle is over Abood itself.  The majority left it hanging (once again) by a thread, while the dissent vigorously defended it. 

As in Knox, the majority opinion here begs for another case, another chance to overturn Abood--a move that would strike a very serious blow to public sector unions.  In the meantime, it continues to chip away at Abood's foundation, planting time bombs in Harris and Knox that it will use whenever it gets the next case that puts Abood squarely within its range. 

Until that time comes, however, Abood stays on the books.  And public sector fair-share requirements survived again, even if bruised and battered.

https://lawprofessors.typepad.com/conlaw/2014/06/sharply-divided-court-takes-another-shot-at-public-sector-fair-share.html

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