SCOTUS unions
Rahnee Patrick, left, of Access Living in Chicago, and Lanette Newman, a home care provider in Illinois, are seen on a snowy plaza of the Supreme Court after hearing arguments in the case of Harris v. Quinn . (Photo: Tom Williams / CQ Roll Call)

The future of public employee unions may be in the hands of Justice Antonin Scalia as the U.S. Supreme Court considers a case brought by Illinois home care workers who don’t want to pay fees to a union they don’t want to join.

Comments and questions from justices during arguments Jan. 21 in Harris v. Quinn revealed a closely divided court, with Scalia cast in the unusual role of swing justice. Not known as an ally of organized labor, the conservative Scalia nonetheless appeared sympathetic to the argument that the case could drastically weaken unions that have long been allowed to charge nonmembers fees to pay for collective bargaining that benefits all employees, including nonmembers.

“These other people are riding for free!” if they no longer have to pay the fee, Scalia said. He told the lawyer for objecting nonmembers, “You’re destroying the ability of the union to get money even from the people who don’t agree with what it’s doing.”While he sometimes plays devil’s advocate, Scalia’s tone throughout the argument seemed to convey sympathy for the union side in the case — so much so that The Wall Street Journal published an editorial the next day urging Scalia to vote against, not for, the union.

“The high court has a major opportunity to restore a first constitutional principle — dare we say even an originalist one — and we’d hate to see such a stalwart supporter of the First Amendment as Justice Scalia join the liberals in forfeiting this chance,” the editorial stated.

The Illinois home care workers involved in the case are paid by the state through Medicaid to assist disabled individuals under programs aimed at allowing the disabled and elderly to stay in their homes and out of institutions. The Service Employees International Union is their collective bargaining unit under state law, and the union began charging nonmembers an agency fee that is smaller than ordinary union dues. In that way, nonmembers help pay for collective bargaining that benefits them, but do not pay for other union activities and policies with which they disagree.

But a group of objecting home care providers claimed in court that even the smaller fee violates their First Amendment rights by forcing them to associate with a particular union. Lower courts ruled against them, citing a long line of high court precedents that have allowed the fees in spite of First Amendment concerns.

The National Right to Work Legal Defense Foundation, which has waged a long war against agency fees, took up the home care workers’ cause. Within minutes of the beginning of the argument on Jan. 21, foundation lawyer William Messenger asked the justices outright to overturn the 1977 precedent that underlies agency fee arrangements in the public sector: Abood v. Detroit Board of Education. That ruling said requiring nonunion public school teachers to pay unions for collective bargaining services that benefit all teachers did not violate the First Amendment.

Unions fear that if the court strikes down the fees, more employees will become “free-riders,” not joining the union but benefiting from its work, and ultimately depleting a source of funds.For his part, Justice Stephen Breyer said to Messenger, “You’re asking us to overturn a case that’s been the law for 35 years. … I guess there are millions of instances in which employees and employers and others have relied on it in collective bargaining.”

Messenger replied that those concerns are “insignificant,” arguing that if agency fees were abolished, the unions would still control collective bargaining, giving nonmembers an incentive to “be on good terms with that union.” The foundation was emboldened to seek reversal of Abood by the court’s most recent ruling on the issue, Knox v. SEIU. That 2012 ruling said the rationale for agency fees — preventing nonunion members from free riding to get the benefits of union membership — was “generally insufficient” to overcome First Amendment objections. Justice Samuel Alito Jr., writing for the majority, said Abood and related precedents “approach, if they do not cross, the limit of what the First Amendment can tolerate.” Scalia joined Alito in the majority in the 2012 case.

Alito was an active questioner in the Illinois case, often sounding like an advocate for abolishing agency fees in the name of the First Amendment. Justice Anthony Kennedy also seemed ready to overturn Abood, suggesting that the fees force employees to “surrender a substantial amount of First Amendment rights to work for the government.”

Jenner & Block partner Paul Smith, who argued on behalf of the union and the state of Illinois, replied that for decades the court has held that this is an acceptable arrangement “because of the duty of fair representation” to bargain for all workers in a workplace and “the benefits of allowing collective bargaining to proceed.” Smith stressed that “the law requires the union to look after that [nonmember] teacher and make sure that they get treated equally.”Arguing in support of the union and Illinois, Solicitor General Donald Verrilli Jr. said Abood “has the force of stare decisis behind it [and] is completely consistent with this court’s First Amendment jurisprudence.”

Contact Tony Mauro at