Last week, Michael Hiltzik alerted us, How Justice Scalia Could Become the Savior of Public Employee Unions. So in the coming days and weeks, don’t be surprised if the liberal press gets all excited that Scalia was on the right side of a case for a change. This happens from time to time. Scalia sees himself as an iconoclast, and he likes to occasionally come down with a liberal opinion just to prove to himself that he isn’t just a partisan hack (even though he mostly is). But there is a long history on this one.
The case at hand is Harris v Quinn. It has to do with home healthcare workers who Illinois has decided are public employees, and so were represented by the Service Employees International Union (SEIU). Now the workers don’t have to join the union if they don’t want to, but they still have to pay what’s called an “agency fee” to cover the cost of the fact that the SEIU negotiates for them and gets them higher wages and benefits than they normally would. Well, supported by the anti-union (and wonderfully Orwellian named) National Right to Work Legal Defense Foundation (RWF), some home healthcare workers took the issue to court where it made its way to the Supreme Court in January.
The RWF is arguing that most of what the union does is politics, so forcing the workers to pay even the agency fee is violating their First Amendment rights. Jack Goldsmith at On Labor, wrote, Oral Argument in Harris v Quinn: Justice Scalia Siding with the Union? And it really does look like it. Scalia seems to think that it is nonsense to say that pay negotiations are a political matter. This all goes back to a 1977 case, Abood v Detroit Board of Education. In a unanimous decision:
The RWF attorney William L Messenger was arguing that the salaries of a public employee are a public concern, thus it is political, thus the law should be overturned. But Scalia countered, “It seems to me it’s always a matter of public concern, whether you’re going to raise the salaries of policemen, whether it’s an individual policeman asking for that or a combination of policemen or a union. It’s a always a matter of public concern, isn’t it?”
This caused Messenger to back himself into a corner. Scalia put forth a hypothetical situation: there’s a police officer who thinks he’s underpaid, so he goes to the chief and asks for a raise. He does it again and again and the chief is getting tired of it. So the chief tells his secretary, “Don’t let him in. I don’t want to talk to him. He’s wasting my time. There is no raise at this time!” Scalia then asked if that meant that the officer’s First Amendment rights were being violated. Messenger said no, of course not. So Scalia pressed. What if it was a pair of officers? Or a dozen? At what point does what they are doing move from being just about officers wanting a raise and it being a political matter?
Messenger did not really have a good answer. As Scalia noted, “But it’s the same grievance if the union had presented it. The grievance is the salaries for policemen are not high enough.” As a legal matter, that does seem to settle it, but you can never tell how Scalia is going to go on these things. He is the loosest of the loose cannons.
To me, this is just a matter of fairness. If the workers do not pay the agency fee, they are free riders. They are getting higher salaries at the expense of other workers. Of course, the whole point of the “right to work” industry is to destroy unions. If free riding is acceptable, eventually everyone becomes a free rider and there is no union. I do hope that Scalia votes to uphold the law. But even if he does, it is almost certain that at least three judges will vote to overturn. And that shows you just how radical the court has become since 1977, when it had that liberal firebrand William Rehnquist on it.