Oral Argument in Harris v. Quinn: Justice Scalia Siding with the Union?

Here is the quickie transcript of the oral argument this morning in Harris v. Quinn.  Perhaps the most important takeaway from argument is that Justice Scalia appeared to believe that the First Amendment is not implicated when public employee unions bargain over employment conditions, and thus seemed disinclined to overrule Abood (even though he joined Knox, which stated in dicta that “a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences”).  As Lyle Denniston says in his summary of the argument, Justice Scalia strongly questioned Petitioners’ “basic argument that public employee union activity is more about shaping public policy — with implications for the First Amendment — than about the traditional union role of seeking to improve the working conditions of those it represents.”  Here is the key exchange:

JUSTICE SCALIA:  Suppose you have a policeman who — who is dissatisfied with his wages. So he makes an appointment with the commissioner, police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, don’t — I don’t want to see this man again. Has he violated the Constitution?

MR. MESSENGER: No.

JUSTICE SCALIA: He is prevented a petition for a redress of grievances?

MR. MESSENGER: No, because in that – with an individual speaking, it’s, sir, a matter of private or internal proprietary matter that under this Court’s precedence don’t rise to a matter of public concern.  However, if you had an organization petitioning a — a police district for wages across the board for police officers, then that is a matter of public concern and would violate the First -­

JUSTICE SCALIA: I really don’t understand that. When — when you — so what if it’s policemen who do this? It’s still not a matter of public concern? Does it have to be the whole police force?

MR. MESSENGER: The line would be once you have the collective, it would be start to become a matter of public concern. It’d be the public concern test.

JUSTICE SCALIA: It seems to me it’s always a matter of public concern, whether you’re going to raise the salaries of policemen, whether it’s an individual policeman asking for that or — or a – a combination of policemen or a union. It’s a always a matter of public concern, isn’t it?

MR. MESSENGER: And if it is, then I submit that it’s unconstitutional for -­

JUSTICE SCALIA: Okay. To not — not give this guy an appointment for the 12th time.

MR. MESSENGER: No. The police chief can certainly shut his door, but it would be unconstitutional as to force -­

JUSTICE SCALIA: Well, how can he shut his door if he has a right to petition, a constitutional right to petition for the redress of grievances? His grievance is he’s not being paid enough

MR. MESSENGER: But in that case under our public concern test, which goes within the Pickering  line, that that individual grievance would not rise to a First Amendment petition.

JUSTICE SCALIA: But it’s the same grievance if the union had presented it. The — the grievance is the salaries for policemen are not high enough.

MR. MESSENGER: But the -­

JUSTICE SCALIA: He’s not asking for just his salary to be raised. He wants salaries of all -­ all the cops to be raised.

The point Justice Scalia is pressing here is very much like the one Ben made yesterday:

The upshot . . . is that public employees generally lack First Amendment protection for speech relating to the terms of their employment.  Those engaged in carrying out the administration of state programs generally lack protection for speech relating to the terms of the programs they administer.  This is true even though the public employee’s speech, directed to his employer, might be over a matter of “public concern” and might be plausibly be considered “petitioning” the government.  Recall, as one among many examples, Garcetti:  That case involved a deputy district attorney who thinks that his office has violated a defendant’s constitutional rights.  When the deputy protests, he is demoted.   Has he spoken on a matter of public concern?  Certainly.  Has he petitioned the government?  Probably.  Is his speech protected by the First Amendment?  No.

Whether the homecare workers in Illinois are public employees (as seems clear to me) or simply paid by the state to carry out an important government program, their speech about the homecare program is entitled to the kind of circumscribed First Amendment protection that the Court routinely affords public employees and public contractors.  And the state’s interests in carrying out these programs, in part through a collective bargaining regime (for the clear articulation of these interests, see the briefs here, here, and here), is entitled the same deference that the Court routinely affords states when they act as employers and proprietors.