Justices Divide Over Question of Unions

Supreme Court justices appeared divided Tuesday as they tackled a labor law case that could upset existing precedents underpinning decades of private and public sector union agreements.

Arising from a dispute in Illinois, justices had probing questions for the attorneys making their case. The court’s liberals stressed the long history of labor union law and practice at stake in the case, along with the rights of different states to handle such issues as they see fit. The conservative justices, and most pointedly Justice Anthony Kennedy, seemed to question the principles on which much of that history is based.

The case heard Tuesday involves a labor dispute in Illinois, specifically over the unionized status of home health care workers paid by the state’s Medicaid program who are unionized under the Service Employees International Union.

The fallout of a court ruling could have an effect beyond Illinois. At least one similar dispute in federal court, in Minnesota, is on hold awaiting the Supreme Court’s decision, and other states have tackled similar questions. Both unions and those opposed to them say this case has the potential to change the trajectory of American labor relations for years to come.

In the Illinois case, some of the workers argue that they shouldn’t be forced to pay dues in part because their unique status as home health care workers means they shouldn’t have formed a union in the first place. An executive order in 2003 from then-Gov. Rod Blagojevich opened the door to unionization.

The narrow question of whether the union should be allowed at all played only a small role in the arguments Tuesday, as the justices focused on the First Amendment and labor law questions at the heart of the dispute over whether non-members should have to pay for a union’s collective bargaining. Under established labor law, unions are required to represent all covered employees, whether they’re members or not.

Challenging the unionization agreement, William Messenger, a staff attorney at the National Right to Work Legal Defense Foundation, said this case was a clear challenge to policies that requires workers to pay into a union even they oppose it or refuse to join, even though he fell back on the narrower distinction between these employees and more traditional or “true” state employees.

“This violates the First Amendment,” Messenger declared early in his arguments. The union is a “compulsion to support the SEIU,” he added later.

The court’s four liberal justices – Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg – had skeptical questions for Messenger, ranging from doubts about his specific arguments to searching for a good reason they should revisit established labor law the Supreme Court has upheld over the years.

“You’re asking us to overturn a case that has been the law for 35 years,” Breyer said, referencing a 1977 ruling that allowed mandatory fees for all those covered under a union’s representation. Those fees are kept separate from funds that unions use to fund political activities, for which employees aren’t required to pay.

Kagan sought to put the arguments in broader context. She said opponents of the unionization were essentially seeking a national right to work standard, an issue over which states have had their own debates for years.

“It’s a radical argument,” she said. “It would radically alter the way workplaces around this country are run.”

Conservative justice Antonin Scalia joined the court’s liberal justices in asking skeptical questions of the argument against the union. The court’s case law says “you can be compelled not to be a freeloader,” he said at one point. He said the argument that requiring fees from workers to a union was a violation of the First Amendment “an arguable position.”

Other justices seemed skeptical of labor provisions requiring fees must be paid by all members. Chief Justice John Roberts, along with Justices Samuel Alito and Kennedy all seemed to question whether requiring workers to pay union dues was the same as forcing them to support the unions’ political positions.

Questioning attorney Paul Smith, representing Illinois in the case, Kennedy seemed to doubt whether public sector unions’ core bargaining functions – on issues such as size of the workforce or wages – could really be separated from broader political debates about the size of government.

“Is not the size of government a question on which there are fundamental beliefs that are being compromised” by someone who’s forced to support a union?” he asked, implying that a union arguing for more money for its workers was essentially taking a political stance.

“I’m asking for a justification for that” fee requirement, he said, “in an era when government is getting bigger and bigger.”

Alito echoed the sentiment. “The issue is whether they could be required to pay for somebody else to go and perhaps say something they might disagree with,” he said.

Roberts focused on the fact that the case involves the costly Medicaid program, which through joint state-federal operation pays for the home health care workers at issue. He called the program itself an important public policy issue, and seemed sympathetic to the argument that disputes over Medicaid relating to the workers’ collective bargaining activities could also be considered political activities – which employees can’t legally be forced to support.

The Obama administration, through Solicitor General Donald Verrilli, refused to weigh in on the wisdom of having policies that required workers to pay union dues whether they’re members or not. Instead, Verrilli said, the court should defer to states’ own freedom to handle labor relations as they see fit, and not infringe upon governments’ ability to deal with workers the way private sector employers do.

Alito questioned that standard, and also cast doubt on states’ motives in adopting policies that unions support, saying that some would simply enact such laws because it’s in their political interest. He specifically pointed to labor’s backing of Illinois leaders who pushed unionization as an example of the dynamic.

Scalia, notably, given his prior questions that seemed open to Illinois’ and the unions’ case, seemed to agree on the point. “One could be skeptical that this is what’s really going on,” he said of states enacting legislation backed by unions.

Verrilli refused to get into a discussion on the motives of given states, saying, “States get to make those kinds of choices.”

The court is expected to rule by the end of its term this summer.