by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School
Most cases on the Supreme Court’s docket in any given year are not the likes of Windsor, Shelby County, or Fisher. Those get the headlines, of course, and rightly so. But most of of the Court’s caseload is dedicated to answering various arcane questions in eddies of the U.S. Code. By virtue of its position at the top of the judicial hierarchy, one of the Court’s primary jobs — still — is to be the final arbiter of these kinds of questions when the lower courts disagree. Only the most fastidious Court watchers pay much attention. (Back when I was clerking on the Court almost twenty years ago, I worked on a case that decided the statute of limitations for the Worker Adjustment and Retraining Notification Act. I’m shocked — shocked! — you don’t remember it.)
So looking over the January argument list, no one would blame you if, at first glance, you assumed Harris v. Quinn falls into this group. The question presented appears to be exceedingly narrow and specific — whether home health care workers in Illinois, paid for by Medicaid, are state employees. If they are, then a union representing state employees will be under a duty to bargain collectively on their behalf, and the workers will be required to pay their “fair share” of the costs of such union representation. The case arose when some health care workers covered by the collective bargaining agreement challenged the mandatory union fees as a violation of the First Amendment.
The Seventh Circuit decided the case in a terse, unanimous opinion. For nearly forty years, since Abood v. Detroit Board of Education, the law has been settled that public employees “may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.” It is the quid pro quo of labor law: the unions are under a duty to represent all employees in the bargaining unit; in return, the employees are prohibited from free-riding.
The only real question in the case, said the Seventh Circuit, was whether the health care workers were state employees. And that question turned on details of how Illinois administers its home health care system and is the kind of question only a labor lawyer could love. In any event, the Seventh Circuit said, yes, they are state employees because of the extent of control the state exercises over aspects of their jobs.
The case should have stopped there.
There is no circuit split on the question of whether home health care workers are state employees under Abood, and the Court would normally allow such a question to percolate for some time in the lower Courts to see if a split develops, and how deep it becomes. Also, the answer in any state will depend in part on how that state administers its Medicaid program. The Court usually avoids state law questions.
So why did the Supreme Court grant cert?
Something must be up, and some Court watchers are saying that Harris could be the sleeper case of the year. And not for good reasons.
The best guess of what is going on is that the Court is prepared to use Harris to overrule or limit Abood. The Court implied a few years ago in Knox v. SEIU that it was increasingly skeptical of mandatory union dues, notwithstanding their longstanding legal pedigree and how essential they are in making the whole management/union framework operate. (If workers could benefit from union representation without paying for it, then no one would pay.)
But it could be worse than that. In their briefs to the Court, the petitioners go further than they litigated below, and now argue that the traditional system of “exclusive representation” is unconstitutional. As explained over at OnLabor:
Exclusive representation means that if a majority of the workers in a given bargaining unit votes for a union, then the union must represent everyone in the bargaining unit – whether they voted for the union or not. It also means that everyone in the unit – whether they voted for the union or not – is covered by the collective agreement that the union bargains.
So the argument now made by the petitioners raises not only claims about forced speech but also forced association. In their brief they even cite Boy Scouts v. Dale, which said that the Boy Scouts had a First Amendment right to discriminate against a gay scoutmaster.
Even those of us who are not labor law experts can see the implications. If requiring someone to join a union is a violation of the right to association, and if expecting workers who benefit from union representation to pay their fair share of its costs is a violation of the right to free speech, the right to unionize will be in shreds.
This is not idle worry. The Roberts Court has deservedly gained the reputation of being extraordinarily pro-business. (The Chamber of Commerce had a 78 percent success rate last Term.) It has restricted sex discrimination claims, limited employee access to class actions, protected corporations from claims of human rights violations, made it more difficult to bring securities fraud claims, expanded the protections of commercial speech, and made it more difficult for unions to engage in political speech. And don’t forget about Citizens United.
So watch Harris v. Quinn. It may look like a case about a minor aspect of labor law over which there is no circuit split. But it offers the Court a real chance to do mischief that would fit into this larger trend. Unfortunately, such pro-business activism would surprise no one.