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January 22, 2014 10:07 AM A Big Threat to Public-Sector Unions

By Ed Kilgore

As you may know, the U.S. Supreme Court held oral arguments yesterday on a case from Illinois involving home health care workers that could very well lead to a major judicial blow to the collective bargaining rights of public sector workers. Indeed, many Court-watchers are saying that Antonin Scalia is the “swing vote” in this case, a pretty scary proposition.

True, a previous Scalia opinion and some questions he asked during oral argument in the current case have identified him with the “free rider” argument against allowing employees represented by unions to benefit from collective bargaining without contributing dues to offset costs of representation, unless states explicitly enact “right to work” laws. But this is not a Justice who can be suspected of any general sympathy for unions.

Scalia aside, what was notable in oral arguments was the interest among other conservative Justices, especially Anthony Kennedy, in pushing this case in a radical direction and perhaps producing a decision against any “union shop” among public employees, regardless of state law on the subject. Here’s SCOTUSblog’s Lyle Denniston, on the argument being made by National Right to Work Legal Foundation attorney William Messenger:

Messenger essentially was trying to make the point that anything a public employee union does is an attempt to shape matters of “public concern,” and it should not be able to compel support — even for part of the monthly dues — from workers who oppose the union’s public policy ambitions.
The home-care workers, their lawyer contended, were being coerced into financial support for a public employee union that wants to “petition the government” in their place, but in ways that some of those workers might well oppose.
That argument, though, would quickly gain the energetic support of Justice Anthony M. Kennedy, who repeatedly made an effort to push the whole argument up to the highest level of constitutional philosophy about protecting the diversity of views about what government policy should be. Kennedy gave the impression that virtually anything a public employee union sought for its workers should be open to general public debate, and dissidents should not be coerced into supporting one side of that debate.
The policy pursuits of a public employee union, Kennedy said, inevitably affect the size of government, and that, he said, involves “a fundamental issue of political belief.” He made it clear that he felt public debate about that issue should be robust and wide open, even for public employees who have a union that purports to speak for them.
Justice Samuel A. Alito, Jr., too, became a sharp questioner of the basic concept of public employee unionism, and left little doubt that he thought the case did involve serious issues of coercion to support public policy that some workers find objectionable.

In other words, SCOTUS could rule that the First Amendment requires a “right to work” regime for public employees everywhere. So much for the traditional “right to work” argument that this is a state matter as provided for in Section 14(b) of the Taft-Hartley Act. In this as in other areas, conservative interest in state’s rights and federalism seems to extend only so far as it advances the conservative agenda.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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