Linda Greenhouse on the Supreme Court and the law.

This column is prompted by the eye-catching headline that appeared two weeks ago: “Share of the Work Force in a Union Falls to a 97-Year Low, 11.3%.” As the article explained, many factors – global, domestic, economic, political – have contributed to the steep decline in the unionized work force, in both the private and public sectors. The trend, while accelerating, isn’t new. And on the surface, certainly, it has little to do with the Supreme Court.

But the story led me to think back to a decision the court issued last June 21. In the breathless run-up to the health-care decision, which came a week later, Knox v. Service Employees International Union didn’t get a great deal of attention. It should have, not so much for what the court actually decided but for what the decision portends for the future of labor law in the hands of an anti-union conservative majority, as well as for the majority’s plan of attack on precedents it finds inconvenient or disagreeable.



The issue in the Knox case seemed narrow, even arcane: whether a public employee union in California had properly handled a temporary dues increase intended to build a war chest to fight anti-union propositions on the state’s 2005 ballot. The specific question was whether employees who were not union members, but who under typical “agency shop” rules paid a fee to support the collective-bargaining work that the union undertook on behalf of all employees, had received an adequate opportunity to object to paying the special dues assessment.

Seven justices – all except Stephen G. Breyer and Elena Kagan – agreed that the union’s procedure was inadequate, an outcome of relatively little moment because the union had already returned the money to the objectors and had, in fact, argued that the case was thus moot. But Justice Samuel A. Alito Jr., writing for a five-member majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, went beyond the confines of the case to suggest strongly that the decades-old accommodation between union members and non-members in public workplaces violates the First Amendment rights of the non-members.

To avoid the problem of “free riders,” agency-shop provisions require that those who object to joining the union nonetheless pay a fee that represents the portion of union dues that goes to the collective bargaining activities from which all employees benefit. The non-members, at their request, are entitled to be excused from contributing to the union’s political activities. Since the non-members must affirmatively exercise this “opt-out” option, this system tends to favor the union; as students of default rules well understand, inertia inevitably keeps some people from bothering to assert their rights.

The opt-out system “represents a remarkable boon for unions,” Justice Alito wrote in his majority opinion characterizing the arrangement as one the court had endorsed haphazardly and without adequate thought. He went on to challenge the basic agency-shop structure, calling it “an anomaly.” Compelling nonmembers to pay any portion of their dues to a union with which they don’t care to be associated is a substantial impingement on the First Amendment right to be free from compelled speech and association, Justice Alito said, adding: “Our cases to date have tolerated this impingement and we do not revisit today whether the court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

In case he hadn’t made it sufficiently clear that 60 years of Supreme Court precedents are now hanging by a thread, Justice Alito continued: “Our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” As for the special dues assessment at issue in the case, he concluded, the opt-out system was constitutionally insufficient, and the objecting employees were free of any obligation unless they chose to opt in.

I’m not arguing that the Knox opinion alone is a game-changer for public sector employment. It is irrelevant in nearly half of the states, where “right to work” laws mean that no one can be required to support union activity. And the decision is only the latest in years of Supreme Court losses for organized labor on central questions of collective bargaining, decisions that have “seriously circumscribed the capacity of a post-industrial work force to engage in effective group action,” as Professor James J. Brudney, a labor law expert at Fordham Law School, put it in a recent conversation.

Nonetheless, this largely overlooked case is notable for a few reasons. I’ve written several times recently about the current majority’s aggressive use of the First Amendment in the service of a conservative agenda. While solicitude for the rights of nonunion public employees certainly predates the Roberts court, the Knox majority’s attack on the long-settled default rule for union objectors underscores how profoundly the free-speech polarity is shifting rightward.

(In December, the federal appeals court in Manhattan invoked the First Amendment to rule that the government couldn’t prosecute a pharmaceutical sales representative for promoting to doctors the “off-label” unapproved use of a prescription drug; such marketing activity, long prohibited by the Food, Drug and Cosmetic Act, is a matter of free speech, the court ruled in United States v. Caronia. Faced with the prospect that the Supreme Court would affirm the ruling, the Obama administration decided last month not to appeal it.)

Further, the Knox decision highlights a disparity between unions and corporations that is highly relevant to the post-Citizens United world of corporate money in politics. The Citizens United decision appears to treat unions and corporations equally, giving both the First Amendment right to spend unlimited amounts of money. But as Professor Benjamin Sachs of Harvard Law School has pointed out, nonunion employees can withhold any money that would go to political activity, thus greatly shrinking the pool of money available, while a corporation’s shareholders who object to the company’s political spending have no equivalent way of dissenting.

Finally, there’s the matter of the Knox majority’s flagrant activism. In his opinion, Justice Alito denied going beyond the confines of the question the parties brought to the court, but Justice Sonia Sotomayor shredded his defensive assertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor said the case, as presented, provided no occasion for the majority’s attack on the opt-out rule, let alone its expressions of skepticism about the constitutionality of the agency shop. Noting that the words “opt in” didn’t even appear in the objecting employees’ brief, Justice Sotomayor said: “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Justice Breyer, joined in his dissenting opinion by Justice Kagan, noted that “the debate about public unions’ collective-bargaining rights is currently intense.” He added, “There is no good reason for the court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”