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Harris v. Quinn: No Big Deal or Slow War Against Public Unions?

By William Peacock, Esq. | Last updated on

All eyes have been on Hobby Lobby, the Supreme Court's decision on the contraceptive mandate. But what about the other Supreme Court decision from the Court's final day, also authored by Justice Samuel Alito?

Is Harris v. Quinn a decision that we shouldn't be overlooking?

The opinion, which deals with compulsory union dues for home healthcare workers, narrows precedent that allows compulsory dues for public sector workers by defining a new class of employees: the partial or quasi-public worker, one who is hired and fired by, and works for a private party, but is paid by the state. These partial public workers cannot be forced to pay union dues, and other dicta in the majority opinion indicated that the conservative majority of the Court may be willing to overrule Abood v Detroit Board of Education (1977).

Is this a dangerous blow against organized labor, a minor setback, or something in between?

No Big Deal

Here's a huge takeaway from Harris: the Court very well could have overruled Abood. Instead, it merely narrowed it by excising a chunk of quasi-public employees from the pool of folks who have to pay compulsory dues.

Over at The Washington Post, Lydia DePillis measures the fallout: though the Service Employees International Union will lose a significant amount of revenue overnight, this merely takes away compulsory dues. While free-riding will of course happen, the union still has quite the case for convincing workers that its in their best interest to contribute: since they were organized in 2003, pay for home health care workers has doubled and the federal Department of Labor has granted them additional protections.

Long Game Attack?

Court observers often describe Chief Justice Roberts' approach to changing precedent as a "long game." Along with the other conservatives, he takes small incremental steps to the right, setting the groundwork for eventually reversing long-standing precedent. (It should be noted, however, that the Roberts Court has overturned precedent and legislation at the lowest rate since the Vinson Court of 1946-1953.)

The prime example: language in an opinion upholding the Voting Rights Act in 2009, an opinion joined by the liberal justices, was used to overturn Section 5 of the VRA in 2013.

If the Court is angling for an eventual overturning of Abood, it certainly did plant some verbal seeds in Harris.

Justice Alito wrote that there is 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." He also labeled Abood as "questionable" and "anomalous."

Why didn't he then go all the way and just overrule Abood? It could be that one of the other conservatives refused to join the opinion unless Alito took a more measured approach -- it was a 5-4 split, after all. Or it could be long-game strategy, slowly moving to the right without appearing activist. Abood, after all, is a nearly forty-year-old precedent -- baby steps are far more palatable than a jarring departure from landmark labor law precedent.

And Politico raises another possibility: this could be the beginning of death by a thousand cuts: the Court could exempt employees, group by group, until there is an insufficient pool of revenue and members for public sector unions to have any real world impact.

Either way, Harris may be no big deal, but what follows very well could be.

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