Some Quick Analysis of Harris v. Quinn

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Here’s a very quick summary of what the Court says and some implications:

The Court starts by emphasizing the degree of control that “customers” – the individuals receiving home care – exercise over the personal care assistants at issue in the case.  The Court then emphasizes what it sees as the relative lack of control exercised by the state: “[o]ther than providing compensation, the State’s role is comparatively small” the Court writes.  This allows the Court to distinguish, factually, the personal assistants in the Illinois program from what the Court calls “full-fledged public employees.”

With this factual distinction in place, the Court then holds that it will not extend Abood (which applies to full-fledged public employees) to the Illinois home care program and the employment relationship at issue there.  Again, the Court points to what it sees as a number of factual differences between the context of personal care assistants and traditional public employment and holds that those differences make Abood inapposite here.  For example, the Court concludes that the Illinois program leaves the union little to bargain about (a point Justice Kagan attacks in dissent) and that there’s little risk of the union sacrificing the interests of nonmembers to members (another point Justice Kagan attacks vigorously).  The Court then concludes:

Abood‘s rationale, whatever its strengths and weaknesses, is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law.  Under the Illinois scheme now before us, however, the union’s powers and duties are sharply circumscribed, and as a result, even the best argument for the ‘extraordinary power’ that Abood allows a union to wield is a poor fit.

That’s the holding.  Predictably, there’s also dicta in the majority’s opinion about Abood and its “questionable foundations.”  Here, the Court says that Abood was too quick to rely on Hanson and Street, the RLA cases that predated Abood, because Hanson and Street did not adequately explore the First Amendment issues involved in fair share agreements.  The Harris Court also critiques Abood for “fail[ing] to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.”  As the Court puts it, “[i]n the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.”  And, the Harris Court says, Abood did not anticipate the “magnitude of the practical administrative problems” that flow from distinguishing chargeable and nonchargeable union expenditures (that is, between collective bargaining and contract administration expenses and other things, like political expenditures).

The majority also rejects an analogy offered in the briefing, and articulated well in Justice Kagan’s dissent (and discussed here in our prior analysis) between the union dues cases and the more general public employee speech cases.  The Court thinks the Pickering/Garcetti line of cases doesn’t apply here, though its not entirely clear why not.  As Justice Kagan points out, the Court has “long acknowledged that the government has wider constitutional latitude when it is acting as employer than as sovereign.”  To reject the Pickering/Garcetti line of cases in the union fees context – by, for example, overruling Abood – would create an “anamoly in the government’s regulation of its workforce . . .: Public employers could [] pursue all policies, except this single one.”  Put slightly differently, the Court’s public employee cases give the government significant latitude to manage its workforces in ways that implicate the First Amendment; allowing the government that discretion, except when it exercises that discretion in a manner that enables unionization, would be inconsistent with the First Amendment itself.

What to make of all this?

1. This is an important loss for the union movement, and for homecare (and probably child care) unions in particular.  But even for homecare unions in the public sector, this need not be a fatal blow.  Unions, as I’ve said, have an excellent track record adjusting to difficult Court decisions.  Indeed, they’ve had to do so since the inception of the labor movement.  Homecare unions will now need a new model for collecting dues in the public sector, a model that manages to overcome the free rider problem that Harris creates.  That’s a difficult task, but not an impossible one — and one which, as I hear it, AFSCME is already making progress accomplishing.

2.  Abood was not overruled.  Harris v. Quinn does not impact the vast majority of public sector employees or unions.

3.  The dicta in Harris about Abood is serious, and it shows that some number of Justices would like to overturn Abood.  But the holding in today’s decision shows that that number probably does not equal 5.  Most of the Harris dicta is just a repeat of what was already said Knox, and Harris was a completely viable vehicle for overruling Abood.  That the Court did not pursue this course may mean the votes aren’t there.

4.  Even if Abood is not overruled, it could plausibly (as Jack suggested to me) die a death of a thousand cuts.  That is, we might never get an opinion explicitly overruling Abood, but could get a series of decisions – similar to Harris – that narrow Abood‘s reach and make the case less and less relevant.

5.  Finally, and most completely obviously: the nomination and confirmation of the next Justice of the Supreme Court will matter a great deal to the future of labor law and labor unions.

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