Is Abood in Trouble?

Jack Goldsmith

Jack Goldsmith is the Learned Hand Professor of Law at Harvard Law School, where he teaches and writes about national security law, international law, internet law, and, recently, labor history.  Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

That question is the title of Lyle Denniston’s preview of Harris v. Quinn at SCOTUSblog.  After reviewing the history of the case, Denniston explains how it “has mushroomed, since the Court granted it, into a major test of the continuing validity of the Abood precedent.”  (Abood held that agency shop arrangements in the public sector are consistent with the First Amendment as long as union service charges collected from nonmembers are not spent for political or ideological purposes.  Our explainer on the relationship between Harris and Abood is here.) Denniston then offers this analysis:

The Court has a number of quite obvious ways to decide this case without confronting the ultimate question of whether the time had come to overrule the Abood decision.  The most obvious alternative approach is a finding that these home-care providers work in an intimate, one-on-one environment, so there is no risk of social disruption over labor relations.

That could allow the Court simply to second-guess the state’s rationale for insisting that these workers need a representative to state government, to negotiate over the scope of Medicaid payments.  This approach could be taken on a theory that it was a way to avoid having to address the constitutional questions about freedom of association and freedom to petition the government.

The Court might be comfortable drawing some distinctions between situations where bargaining over benefits is likely to produce civic tension, and those that do not.  Here again, the isolated work of the home-care providers might provide a rationale for a finding that they are not proper subjects for collective bargaining relationships in any event.

A truly narrow decision could be to hold that these workers are really not employees of the state, but of the patients who hire them, so the state would have no authority to try to draw them into unions.

The Court could decide that the imposition of representation on these workers was, indeed, an interference with their rights under the First Amendment, and that would not necessarily require it to question the continuing validity of the Abood precedent for other kinds of public employees.

In the end, the key to the fate of the Abood precedent is whether there is a majority on the Court that has come to believe that the status of public employees is a poor fit for the doctrine of an “agency shop.”  To declare that would be a bold step, indeed, and would upset a great deal of labor law precedent even beyond Abood.  That is a fairly daunting prospect.  The stakes of such a ruling have been energetically debated in the briefs.

And yet, this is a Court that has a very well-established record of great sensitivity to First Amendment claims, and is willing to be bold in defending the rights of free expression.

Enjoy OnLabor’s fresh takes on the day’s labor news, right in your inbox.