In a 5-4 decision by Justice Samuel Alito, the Supreme Court dealt a serious blow to public sector unions on Monday, although the opinion fell short of the claim made by the anti-union litigation shop that argued that case, which sought to undermine the finances of all public sector unions. The plaintiffs in this case, and their anti-union attorneys, argued that non-union members cannot be required to reimburse unions that bargain on their behalf for the costs it incurred during that bargaining. Without those reimbursements, the financial viability of the unions is in jeopardy.
Alito’s opinion in Harris v. Quinn recognizes a category of “partial public employees” who cannot be required to contribute funds to the collective bargaining that they benefit from. This case involved Medicaid home health workers who are paid by the state but who work directly for individual patients. Nevertheless, the case hints that the Court will deal additional blows to public sector unions in the future. Alito labels a seminal Supreme Court opinion allowing unions to collect reimbursements from nonmembers “questionable on several grounds.”
Harris is a First Amendment decision. As Justice Stephen Breyer pointed out at the oral arguments in Harris, and as Emily Bazelon expands upon over at Slate, Harris is the latest effort by conservatives to use “the First Amendment as their weapon” in order to implement their preferred policies through the judiciary. The purpose of the First Amendment, is to ensure a robust debate where no ideas are suppressed, so that the American electorate is best equipped to make choices at the polls. As Justice Oliver Wendell Holmes explained in 1919, “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
Harris, however, turns this principle on its head. As Justice Elena Kagan laid out at oral argument, [s]ince 1948 . . . there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed. Some States say yes, some States say no. It raises considerable heat and passion and tension, as we recently saw in Wisconsin. And — but, you know, these are public policy choices that States make.” The plaintiffs in Harris argued, in Kagan’s words, that “people have been debating the wrong question when they’ve been debating that, because, in fact, a right-to-work law is constitutionally compelled.”
The purpose of the First Amendment, according to the plaintiffs in Harris, is not to foster democracy, it is to render democracy irrelevant. This is a radical rethinking of our Constitution. And it was just embraced by five justices of the Supreme Court of the United States.