Next Monday’s Ruling in Harris v. Quinn

by Ed Whelan

Public-sector union bosses will have difficulty sleeping this weekend, as they await the Supreme Court’s disposition on Monday of what may be the surprise blockbuster of the term, Harris v. Quinn. The Court may well overrule a dubiously reasoned precedent from 1977—Abood v. Detroit Board of Education—that held that the First Amendment allows the government to condition a person’s employment in the public sector on that person’s paying fees to a union.

Public-sector unions, of course, have benefited massively from the coerced funding that Abood allows.

The unions’ worst nightmare became more vivid yesterday when Chief Justice Roberts and Justice Breyer wrote opinions from the Court’s January calendar. That leaves Justice Alito as the only justice who has not yet written a lead opinion from that calendar. Alito has also written one fewer opinion for the term than any of the other justices. So it’s a very good bet that he was assigned to write in Harris.

Two years ago, in Knox v. SEIU, Alito wrote an excellent majority opinion that held that the First Amendment does not allow the government to authorize a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political activities. As I discussed at the time, the Knox ruling was significant less for its specific holding than for the Court’s long-overdue awakening to what Alito aptly called “the critical First Amendment rights at stake.”

The Court in Knox did not “revisit … whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” But it did observe that the free-rider arguments that those cases have relied on—i.e., preventing nonmembers from free-riding on the union’s collective-bargaining activities—“are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.” So the Court’s ruling on Monday may be the occasion for correcting that anomaly.

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