Harris One More Example of Conservative Justices Putting Principle Ahead of Politics

Harris One More Example of Conservative Justices Putting Principle Ahead of Politics

Harris One More Example of Conservative Justices Putting Principle Ahead of Politics

Next time you hear some liberal foghorn spouting off about “activist conservatives” on the U.S. Supreme Court – particularly Justice Antonin Scalia – be sure to cite Monday morning’s Harris v. Quinn ruling to them.

Even a cursory look at the language of the decision shows how much the majority longed to overturn Abood v. Detroit Board of Education, a 1977 case that affirmed the constitutionality of so-called “agency shops,” in which workers can be fired for refusing to join the union or at least paying a fee for collective bargaining services.

Just a sampling of the Harris ruling includes these zingers:

  • “The Abood Court’s analysis is questionable on several grounds.”
  • “The First Amendment analysis in Hanson was thin, and Street was not a constitutional decision.”
  •  “…the court fundamentally misun­derstood Hanson’s narrow holding, which upheld the authorization, not imposition, of an agency fee.”
  • “The Abood Court also failed to ap­preciate the distinction between core union speech in the public sec­tor and core union speech in the private sector, as well as the concep­tual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for politi­cal purposes.”
  • “Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or non-chargeable … or the practical prob­lems that would arise from the heavy burden facing objecting non­members wishing to challenge the union’s actions.”
  • “Finally, the Abood Court’s critical “labor peace” analysis rests on the unsupported em­pirical assumption that exclusive representation in the public sector.” 

And yet, when the time came to write an opinion, the majority opted to leave Abood intact. Rather than declaring – as the plaintiffs had asked – that no public employee anywhere could be compelled to join a union or pay a representation fee to one, the court simply decided the plaintiffs in the Harris case were never full-fledged public employees to begin with.

As home healthcare practitioners – in many cases family members being compensated by Medicare for looking after a loved one – the Illinois workers were more like contractors than regular employees, the majority decided. Therefore, there was no need to overturn Abood in this particular case.

Given half a chance to overturn an existing precedent they didn’t like, do you think for one nanosecond the liberals on the court would have demonstrated a similar level of judicial restraint?

Even more noteworthy is that, by all accounts, the swing justice in Harris wasn’t moderate Anthony Kennedy, but Antonin Scalia. Although widely excoriated by liberals as the most conservative – and, by extension, activist – member of the court, Scalia is, in fact, a stickler for original intent.

Regardless of whether the outcome happens to suit his personal political agenda, Scalia always follows the Constitution. Period. No “penumbras and emanations.” Just hard facts.

And this morning, a lot of unions owe their continued existence to that fact.

There’s an old maxim that says you can tell a lot about what a person is capable of doing by listening to what he accuses you of. In a legal context, that means liberals love to accuse conservative justices of ignoring the Constitution and legislating from the bench. But they can never cite real-world examples of cases like Griswold or Roe v. Wade where a conservative ruling had nothing to do with the Constitution and everything in the world to do with personal ideology.

Show me a case like Harris, where the liberal justices didn’t go as far as that they might have just because they couldn’t justify it constitutionally, and I’ll believe both sides are equally activist. Until then, no one can convince me the conservatives don’t hold themselves to a higher standard.


Vice President for News and Information
Jeff is a native of West Virginia and a graduate of West Virginia University with a degree in journalism. He served in the U.S. Army at Fort Lewis, Wash., as a broadcast journalist and has worked at a number of newspapers in West Virginia and Washington. Most recently, he spent 11 years as editor of the Port Orchard (Wash.) Independent, which earned the 2011 Washington Newspaper Publishers’ Association’s General Excellence Award as the top community newspaper in Washington. Previously, he was editor of the Business Examiner newspaper in Tacoma, Wash., for seven years. Jeff lives in Lacey; he and his wife have grown twin daughters.