Scalia may be swing vote in union-fees case


WASHINGTON — The future of public-sector labor unions may rest with conservative Justice Antonin Scalia.

On Tuesday, the Supreme Court debated whether teachers and other public employees should continue to be required to pay union fees, even if they don’t join or support its activities. Since a 1977 ruling, the high court has upheld such mandatory fees, known as “fair-share” dues.

But in recent years, some justices have raised doubts about whether the practice violates the First Amendment, and during oral arguments several conservatives appeared ready to strike it down.


Justices Anthony M. Kennedy and Samuel A. Alito Jr. repeatedly questioned whether the government should force unwilling workers to pay such fees.

Kennedy, a strong supporter of free speech, said he did not see why an employee “who objects to the union’s position on fundamental political grounds” should be required to pay dues.

Unions, he noted, regularly push for more public spending. But not all workers favor “government getting bigger and bigger,” he said. The issue, he said, involves “fundamental political beliefs, fundamental convictions that are being sacrificed if a nonunion member objects to this line of policy.”

Liberal-leaning justices defended the 1977 decision, which has fueled the growth of public-sector unions in much of the nation. As the union membership declined in fading industries such as railroads, steel and auto manufacturing, the labor movement — and the Democratic Party — has relied increasingly on the organizing and campaign support of public-sector employees.

Striking down mandatory fees, which have become the bedrock of public union funding, would deal a devastating blow to the labor movement.

That “is a radical argument,” Justice Elena Kagan told an attorney for the National Right to Work Foundation, an anti-union advocacy group that brought the case. Without a requirement that everyone share in the cost of collective bargaining, unions could wither, she said.


“It would radically restructure the way workplaces are run.... There must be thousands and thousands of contracts across the United States with fair-share provisions,” she said.

The surprising tie-breaker in the case might be Scalia, alone among the five more conservative justices. He suggested he was not ready to switch course, noting the court has previously ruled that employees should not be allowed to reap the benefits of union membership without paying their fair share.

“What our cases say is you can be compelled not to be a free rider, to pay for those items of bargaining that benefit you as well as everybody else,” he told one lawyer.

The issue arose in an Illinois case involving home-care providers. National Right to Work sued Illinois after decisions in 2003 and 2009 to classify 20,000 in-home care workers as state employees. The workers, who assist adults with disabilities, are often family members of the disabled or are self-employed, but they are paid by the state with Medicaid funds.

After being declared state employees, the workers voted to join the Service Employees International Union, which succeeded in winning higher wages and better benefits.

In its lawsuit, the right-to-work attorneys portrayed the arrangement as a questionable deal between state Democrats led by former Illinois Gov. Rod Blagojevich and union officials. Alito picked up on the theme.


“Gov. Blagojevich got a huge campaign contribution from the union and, virtually as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting $3.6 million in the union coffers,” Alito told U.S. Solicitor Gen. Donald Verrilli Jr., who joined in defending Illinois. The judge was referring to the $3.6 million in dues paid to SEIU after home-care providers were organized.

Verrilli denied that partisan politics were at play, noting that a “large bipartisan majority” of the Illinois Legislature voted in favor of the decision to extend union bargaining rights to the home-care providers.

The program benefits the state as well as the disabled adults because it prevents them from being sent to more costly institutions, he said.

“I think under our federal system, states get to make choices,” Verrilli said, urging the court not to second-guess how the states like Illinois handle their labor-management affairs.

The justices will meet behind closed doors to vote in the case of Harris vs. Quinn. If Scalia joins with the four more liberal justices, they would affirm the federal judges in Chicago and uphold the program.

Though Scalia rarely casts a deciding vote on the side of liberals, he has done so in the past when based on the court’s precedents or his view of what the Constitution requires.


If the conservative bloc has a majority, they could rule narrowly to say these private in-home workers were not state employees, or they could rule broadly that it is unconstitutional to collect union fees from public employees or authorize a union to be the exclusive bargaining agent for public employees.

Such a ruling would have a significant impact in Democratic-leaning states, which authorize unions and mandatory fees. The so-called blue states are in the Northeast, the Upper Midwest and on the West Coast. Most of the Republican-leaning red states in the South and the Great Plains have “right to work” laws that allow employees to opt out of unions.

The court also heard arguments in two California cases Tuesday.

The justices debated whether to make it easier for writers and their heirs to sue Hollywood studios for copyright infringement. Federal judges have thrown out such claims if heirs wait years, even decades, to sue.

The court heard an appeal from the daughter of a writer who wrote an early screenplay that may have led to the 1980 film “Raging Bull.”

The court also considered whether to limit the power of the police to pull over cars or trucks based on phoned-in tips of erratic driving. The California courts have upheld such stops based on safety concerns.