Will the Supreme Court Overturn Abood?

By: Kristin Kraemer

The Supreme Court is currently considering a case that could have a large impact on labor unions for public employees.[1]  The Supreme Court heard oral arguments for this case, Harris v. Quinn, in January.[2]  If the Supreme Court finds for the employees bringing this action, it will mean public employees could choose not contribute to unions.[3]  This case has political significance as public employee unions play an important role in Democratic politics.[4]

In this case, home-care workers from Illinois are challenging a law that requires them to contribute fees to a collective bargaining unit.[5]  The home care workers in this case are hired by their patients and paid by the state.[6]  The governor of Illinois decided that these home-care workers would be treated as state employees for representation purposes so that they could unionize.[7]  Since 1977, states have had the power to require public employees to contribute to unions in order to cover the cost of collective bargaining, with the requirement that the fees not be used for a political purpose.[8]

In Harris v. Quinn, the main basis for their argument has its roots in the First Amendment.[9]  William L. Messenger represents the employees who are challenging the law.[10]  In oral arguments, Mr. Messenger said that the bargaining done by the collective bargaining unit is political in nature.[11]  His position is that in the public sector, compulsory fees are illegal under the First Amendment.[12]  By forcing an employee to support a union that is lobbying for changes in something like Medicaid rates, it becomes a matter of public, political concern.[13]  His argument is that the employees are being required to support speech that they do not agree with.[14]  Messenger argued that since it was compelled speech, it becomes a first amendment violation.[15]  Mr. Messenger agreed with Justice Scalia when he made the comparison, “I suppose the fact hat you’re entitled to speak against abortion would not justify the government in requiring you to give money to Planned Parenthood?”[16]  Messenger said that by requiring the employees to join this collective bargaining unit, their rights to freedom of speech and association are be impeded on.[17]

If the Supreme Court decides in favor of the employees who do not want to pay dues, they would overturn Abood v. Detroit Board of Education.[18]  The Court in Abood held that agency shop for public employees is constitutionally valid.[19] “Agency shop” is the system used when a union acts as an agent for all employees in the bargaining unit regardless of union membership. The union also collects due from all employees regardless of union membership.[20]  The Supreme Court has upheld this system, but acknowledged that there are First Amendment concerns which need to be examined carefully.[21]  The Supreme Court in Abood said “a union cannot constitutionally spend [objectors’] funds for the expression of political views, on behalf of political candidates or toward the advancement of other ideological causes not germane to its duties as collective bargaining representative”.[22]  Could this decision now be overturned? That is precisely what Mr. Messenger urged during oral arguments.[23]  Justice Breyer said to Mr. Messenger:

. . . you’re asking us to overturn a case that’s been the law for 35 years. I count hundreds of citations in the opinion, and I guess there are millions of instances in which employees and employers and others have relied on it in collective bargaining, so I’d appreciate your saying a sentence or two of why we should upset reasonable expectations over so long a period of time. [24]

To overturn Abood, which has been in effect since 1977, would have a large impact on collective bargaining units of public employees.  The law in Abood has been relied on in many decisions since then.  The Supreme Court now has the opportunity to uphold or overrule a decision that has become precedent for public employee unions.


[1] Id.

[2] Hector Barreto, Supreme Court Labor Decisions Could Shake NLRB to its Core, Forbes (1/28/2014 at 6:00 a.m.) http://www.forbes.com/sites/realspin/2014/01/28/supreme-court-labor-decisions-could-shake-nlrb-to-its-core/

[3] Id

[4] Robert Barnes, Supreme Court Considers Major Change in Public-Employee Unions, The Washington Post, (January 21) http://www.washingtonpost.com/politics/supreme-court-considers-major-change-in-public-employee-unions/2014/01/21/6b4d2adc-82c4-11e3-bbe5-6a2a3141e3a9_story.html; Sarah F. Anzia and Terry M. Moe, Public Sector Unions and the Costs of Government, August 2012 available at http://gsppi.berkeley.edu/faculty/sanzia/Anzia_Moe_8_7_12.pdf

[5] Id.

[6] Lyle Denniston, Argument preview: Is Abood in trouble?, SCOTUSblog (1/18/14 12:06 a.m.) http://www.scotusblog.com/2014/01/argument-preview-is-abood-in-trouble/

[7] Id.

[8] Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

[9] Transcript of Oral Argument at 13, Harris v. Quinn (2014) (No. 11-681), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-681_h3cj.pdf.

[10] Robert Barnes, Supreme Court Considers Major Change in Public-Employee Unions, The Washington Post, (January 21) http://www.washingtonpost.com/politics/supreme-court-considers-major-change-in-public-employee-unions/2014/01/21/6b4d2adc-82c4-11e3-bbe5-6a2a3141e3a9_story.html

[11] Transcript of Oral Argument at 5, Harris v. Quinn (2014) (No. 11-681), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-681_h3cj.pdf.

[12] Id. at 21.

[13] Id. at 9.

[14] Id. at 13.

[15] Id. at 17.

[16] Id.

[17] Id.

[18] Lyle Denniston, Argument preview: Is Abood in trouble?, SCOTUSblog (1/18/14 12:06 a.m.) http://www.scotusblog.com/2014/01/argument-preview-is-abood-in-trouble/

[19] Foundation Supreme Court Cases, National Right To Work http://www.nrtw.org/en/foundation-cases.htm (last visited February 20, 2014, 1:38 p.m.).

[20] Agency Shop, merriam-Webster http://www.merriam-webster.com/dictionary/agency%20shop (last visited February 20, 2014, 1:38 p.m.).

[21] Id.

[22] Foundation Supreme Court Cases, National Right To Work http://www.nrtw.org/en/foundation-cases.htm (last visited February 20, 2014, 1:38 p.m.).

[23] Transcript of Oral Argument at 5, Harris v. Quinn (2014) (No. 11-681), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-681_h3cj.pdf.

[24] Id.  at 26.

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