The court stops short of sweeping the union laws away altogether. For unions, not a fatal verdict

The conservative majority on the Supreme Court on Monday signaled its distaste for state laws requiring public-sector workers to pay union dues — but stopped short of sweeping them away, handing organized labor a partial victory in a contentious case.

By a 5-4 vote, the justices ruled in Harris v. Quinn that home health care workers in Illinois cannot be compelled to financially support a union they don’t wish to join. Illinois is one of 26 states that require public-sector workers — such as firefighters, police officers and teachers — to pay partial dues, often known as “agency fees,” to the unions that negotiate their contracts and represent them in grievances, even if the employees find the union’s advocacy work distasteful.


Union leaders had feared that the justices might strike down those state laws as unconstitutional. The justices did not go that far. They issued a more narrow ruling that the home health care workers at issue in the case are not “full-fledged public employees” because they are hired and fired by individual patients and work in private homes, though they are paid in part by the state, via Medicaid.

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Because they’re not truly state employees, the justices decided these workers did not have to pay union dues.

Even the fairly narrow ruling is a blow to the Service Employees International Union, the American Federation of Teachers and other unions that have organized hundreds of thousands of home health workers in states including Illinois, California and Connecticut. Those workers can now decide whether they want to support the union financially.

Labor leaders regard workers who don’t pay the fees as freeloaders, since they benefit from the union’s work negotiating contracts but don’t pay their fair share to cover the expenses.

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“My gut reaction [to the ruling] was defiance,” said Mary Kay Henry, president of the SEIU, which counts about 400,000 home health workers among its members. “Today we are more determined than ever to stay united.”

Other labor leaders, including AFT President Randi Weingarten, pledged to redouble their efforts to organize workers.

And the White House vowed to back them up. Years of tension over issues ranging from education policy to health care regulations to the Keystone XL pipeline have pinched relations between President Barack Obama and the unions that twice helped him win elections. But his press secretary made clear there was no divide on the fundamental questions raised by the Supreme Court case.

The union arrangement the court struck down in Illinois was crucial to improving health workers’ pay, benefits, training and safety, Press Secretary Josh Earnest said. He called the ruling a disappointment and said it would “make it significantly harder for these dedicated employees to get a fair shake in exchange for their hard work.”

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Earnest added, for good measure: “The administration remains committed to defending collective bargaining rights.”

Legal analysts said the court spared unions a devastating blow — but warned that organized labor isn’t out of the woods yet. Far from it.

Indeed, in writing for the majority, Justice Samuel Alito sharply criticized a 1977 precedent, known as Abood, that granted states the right to compel union dues. Alito called that ruling “questionable” and “anomalous,” all but inviting a further challenge in the future. He was joined in his opinion by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy.

Alito cited a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Such language suggests the conservative majority may be ready to overturn Abood and free all public-sector workers from compulsory dues. (The court has previously held that workers can’t be forced to subsidize unions’ political activism, just the portion of the dues that covers the costs of negotiation and representation.)

“In the short run, the decision is fairly limited,” said Mark Neuberger, an attorney focusing in labor law at the firm Foley & Lardner. “However, what should have every union officer grabbing for a bottle of antacids is the thought process revealed by the majority of the justices in the decision today. They view compulsory union membership as a restraint of free speech.”

On the other hand, the case before the court offered a clear opportunity for justices to abolish mandatory fees for once and for all — “and they didn’t do it,” said Benjamin Sachs, a law professor at Harvard University.

Sachs noted that the sharp language in Monday’s decision echoed a 2012 opinion by the conservative majority, also written by Alito.

That makes twice that the court has hinted at a willingness to deal a devastating blow to Big Labor, but pulled back.

“I think the most likely reason is that there are not currently five justices on the Supreme Court who believe that Abood should be overturned,” Sachs said. “It is possible that this is as far as the court will go.”

Based on questions during oral arguments, legal analysts have speculated that Justice Scalia — normally a reliable conservative vote — may be the holdout, unwilling to reverse a precedent that has shaped employment law for nearly 40 years.

Another possibility: The justices may use future cases to exclude additional groups from compulsory dues, just as they excluded home health workers on Monday. That could punch a huge hole in union finances and accelerate a decline in membership even if the justices never reverse their 1977 precedent. In other words, Sachs said, “Abood could die a death of a thousand cuts.”

Unions have overcome adverse rulings in the past and labor leaders vowed to do so again this time, with public pledges to redouble their organizing efforts.

But if workers begin to exercise their new rights to opt out of paying their share of union costs, that could start a vicious cycle for organized labor, said Laura Weinrib, an assistant law professor at the University of Chicago.

“The less powerful unions become, the harder it is for them to make the case that they’re delivering on their promises” — and the tougher it becomes for them to persuade potential members to pay up, Weinrib said. She noted that many health care workers in particular are living paycheck to paycheck and thus have a “very real economic incentive” not to spend money on dues, even if they support the union in theory.

Conservatives hailed the ruling as a victory for individual freedom, particularly the First Amendment right to freedom of association.

“This ruling frees thousands of home care and child care providers from financially assisting government unions that they disagree with,” said Trey Kovacs, a policy analyst at the Competitive Enterprise Institute.

The decision “is a good sign of things to come,” said Terry Pell, president of the Center for Individual Rights.

He’s representing several California teachers suing to get out of paying union dues on First Amendment grounds. That lawsuit is pending before the Ninth Circuit. Pell hopes to bring it to the Supreme Court as early as next year as a potential vehicle for overturning Abood.

Justice Elena Kagan appeared sensitive to that possibility in her dissent.

She criticized her fellow justices for “taking potshots at Abood” and insisted that Alito was wrong to describe that decision as questionable.

“The Abood rule is deeply entrenched, and it is the foundation for not tens or hundreds, but thousands of contracts between unions and governments” across the U.S., Kagan wrote.

The majority, Kagan wrote, has no justification for even considering overturning a precedent nearly four decades old.

Kagan was joined in her dissent by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Within hours of the ruling, Democrats sought to use it as a fundraising tool.

The advocacy group Democracy for America sent out an email blast linking the decision to the day’s other big ruling, which held that employers with religious objections, such as Hobby Lobby, did not have to provide contraception coverage under Obamacare.

The email, from campaign organizer Karli Wallace, framed the two rulings as “further proof that conservatives are doubling down on their war on women” — and requested donations to fight back.

Conservatives, too, saw the ruling in political terms. Bob Williams, president of State Budget Solutions, a public policy group that focuses on fiscal restraint, exulted that the ruling will ensure that workers “are not forced into associating with a union just because a labor-backed politician desperately wants union dues spent on his or her future campaign.”