The predictably unpredictable U.S. Supreme Court, after tantalizing freedom-lovers with the prospect it would release its decision in Harris v. Quinn on Thursday, has now moved the announcement back to Monday – the final day of the 2014 session.
Veteran court watchers, however, are pointing to several tell-tale clues left behind in previous rulings and procedural maneuvering and hinting it’s possible the justices might just be poised to deliver a body blow to public-sector unions in the landmark case.
Stripped to its essence, Harris v. Quinn concerns whether the state of Illinois has a right to compel its home healthcare workers to either join a union or pay an agency fee to support its bargaining efforts. The plaintiffs argue their First Amendment rights of free speech are violated when they’re forced to choose between funding a union whose goals they oppose and losing their job.
And it’s possible the court could issue a narrow ruling in the case, one that just affects the Illinois workers. But the National Right to Work Legal Defense Foundation, which sponsored the case, is after bigger game.
In their arguments to the court, the plaintiffs’ lawyers made it clear they expect the case to be a referendum on Abood v. Detroit Board of Education, a 1977 ruling 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.
Should the court decide to invalidate Abood, it would turn Washington and 25 other states where such practices are legal into “right-to-work” states with the stroke of a pen.
And while it’s always perilous to assume how justices will vote, it seems fairly clear based on previous votes and the tenor of their questions when the case was heard in January, that the court’s liberal wing – Justices Ruth Ginsberg, Elena Kagan, Stephen Breyer and Sonia Sotomayor – will almost certainly oppose any attempt to undermine Abood. Meanwhile, Justices Samuel Alito, Clarence Thomas and Anthony Kennedy, along with Chief Justice John Roberts, are apparently chomping at the bit to do so.
The swing justice, interestingly, is Antonin Scalia – ordinarily no great friend of labor, but more importantly a stickler for original intent. If Scalia believes Abood is consistent with the intent of the Constitution’s framers, he’ll support the ruling even though he may not like the outcome. He voted to do just that in Lenhnart v. Ferris Faculty Association (1991).
Still, those reading the tea leaves believe it’s a bad sign for the unions that apparently the majority opinion in Harris will be written by Justice Alito – arguably the court’s harshest critic of Abood. Witness this exchange this morning on Bloomberg Law’s SCOTUS Blog between moderator Amy Howe and an online commenter:
It may also be revealing that the court left its two most controversial cases, Harris and Hobby Lobby, which deals with the government’s right to compel employers to provide abortion care to employees, for Monday. That could signal game-changing rulings in one or both.
For those of us determined to break the public-sector unions’ vicelike grip on Washington state politics, it won’t be easy to wait until Monday to see if the moment of deliverance is at hand. But if the Harris ruling turns out the way some are beginning to speculate it might, it’s totally worth it.