Tactical Defeat For Unions May Be Strategic Victory

As many expected, the Supreme Court ruled in Harris v. Quinn that Illinois personal assistants who do not wish to join a union need not pay fees for collective bargaining. Yet, under the circumstances, the ruling is still mostly good news for public sector unions.

The case, which was argued in February, concerns a particular group of workers who mainly work for their patients or patients’ families directly, but who are paid by the state, which also controls some working conditions. The Illinois Legislature deemed this enough to qualify the aides as state workers eligible for collective bargaining. But despite the state’s claims, these workers are qualitatively different from most public sector workers.

It is this difference that is the key to the unions’ win in the midst of a ruling that seems, on its surface, to be a defeat.

In a dissenting opinion, Justice Elena Kagan pointed out that, in argument, the crux of Harris v. Quinn rested on whether to overturn a particular precedent: Abood v. Detroit Board of Education, which established the power of public employers to require employees to pay for union representation regardless of whether they wanted it. Though it ruled against the unions, the majority did not abandon Abood. Instead, the Court merely declined to extend the precedent from what it called “full-fledged public employees” to the personal assistants, who are public employees solely for the purpose of collective bargaining. While the majority opinion took time to criticize Abood, it did not overturn it.

I agree with Kagan’s observation that the majority went to great lengths to distinguish the workers at issue in Harris v. Quinn from run-of-the-mill state workers, whose working conditions and employment are handled solely by the government. For public sector unions, this is what makes Harris a mere setback rather than a disaster. The vast majority of public employees can still be forced to financially support unions whose positions they may reject and whose representation they may not want.

Kagan wrote that the choice to leave Abood standing was “cause for satisfaction, though hardly applause.” She went on to invoke stare decisis, and said, “Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse [Abood].”

This is simply untrue. It was entirely possible for the Court to reverse Abood, as requested by the plaintiffs, as well as in many friend-of-the-court briefs. My guess would be that as many as four justices were prepared to reject Abood, but that they steered clear in order to secure a crucial fifth vote – probably that of Justice Anthony Kennedy – to rule in favor of the Illinois workers at all.

Stare decisis is a principle typically invoked by whichever side likes the status quo governing a particular legal issue. When it comes to constitutional rights, Kagan and her fellow liberals call upon stare decisis to support treasured decisions like Roe v. Wade but would be perfectly happy to overturn Citizens United if given the chance. For conservative justices, it’s just the opposite.

Certainly a future Court in which one of the incumbent liberals has been replaced by a conservative might be more prepared to reverse Abood than the current justices. If they felt strongly enough, stare decisis would not stop them from doing so. Instead, the Court’s workload and its priorities may be what end up protecting public employee unions. The rules governing agency shops for public employees are not exactly the most pressing issue on the legal landscape. They are not even the 10th most pressing – nor, probably, the 20th. For that reason alone, it could be many years before the Court is willing to revisit the issue, even if the outcome may be different if and when it does.

Hence the strategic value for public employee unions in losing Harris v. Quinn. Given the current Court’s makeup, it was probably the best result the unions could have hoped for, a better one than they expected and one that may shield them for some time to come.

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