Wall Street Journal Begs Scalia Not To “Join The Liberals”

The Wall Street Journal took to its editorial pages to plead with ultra-conservative Supreme Court Justice Antonin Scalia to overturn decades of labor law precedent -- including his own opinion -- that would greatly hinder public-employee unions' ability to advocate for their members.

The Supreme Court has long held that employees in unionized workplaces are required to pay dues even if they're not members, as long as their dues don't go toward the political activity of the union, which would be a violation of non-members' First Amendment rights. Requiring dues payments from non-members helps prevent a “free rider” problem where non-unionized workers receive the significant benefits of unionization without having to pay for it.

On January 21, the Supreme Court heard oral arguments in Harris v. Quinn, a case that could allow home-care workers who voted against unionization to refuse to pay dues. These workers, whom the state of Illinois recognizes as public employees because they're paid with Medicaid funds, argue that the union's efforts to raise wages constitute political activity.

Lawyers for the union and for Illinois counter that unionization has reduced turnover for home-care workers, has nearly doubled wages for those workers, and has saved the state around $632 million. It should be noted that the plaintiffs in this case, despite opposing the union, still accepted the wage increase, all while bringing a lawsuit that has national implications for the labor movement. As NPR's legal affairs correspondent Nina Totenberg reported, a finding for the plaintiffs “could drive a stake through the heart of public employee unions” because unions will still be required by law to represent and advocate for non-members even if they refuse to pay dues.

But the WSJ, never one to pass up an opportunity to attack unions, is predictably pro-plaintiff when it comes to Harris. The editorial board, presumably taking advantage of the fact that the WSJ is one of just two newspapers Scalia reads, pleaded with him (or his clerks) to “restore a first constitutional principle” by finding that paying union dues violates the plaintiffs' First Amendment rights -- something that Scalia has previously declined to do.

From the January 22 editorial:

This week's Supreme Court oral argument in Harris v. Quinn showed that four Justices seem ready to provide a major victory for First Amendment rights over monopoly union power. The conservative Justice on the fence seems to be none other than Antonin Scalia, whose concerns as always are serious and deserve a response.


The four liberal Justices believe that these First Amendment claims are less important than the state interest in enforcing dues collection laid out in a 1977 case, Abood v. Detroit Board of Education. That case held that the government, like any private employer, could require dues payments in the name of managing employees and to ensure “labor peace.”

Since Abood the High Court has tried to protect worker First Amendment rights by drawing a line. Workers can be compelled to pay dues that go to collectively bargain for wages and benefits, but they can't be compelled to pay dues that go to political activities. Justice Scalia seems happy with this line and isn't sure Abood needs to be overturned or modified.

The constitutional answer is that being forced to join a public union is different from a union in private industry in its politically coercive implications for free speech. Take a teachers union that collectively bargains for higher pay and benefits for its members. Lobbying to raise teacher wages is taking a political position that government spending ought to be greater, and perhaps taxes higher.

Arguing for bigger government is inherently a form of political speech that individual dues-payers may disagree with. Those workers are thus forced to subsidize speech they don't like, which the High Court has found in other cases violates the First Amendment.


We realize this is getting into the legal weeds, and tangling with Justice Scalia is one of life's more harrowing experiences. But 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.

What the WSJ apparently doesn't realize is that by suggesting the Court take advantage of a “major opportunity” to hobble public employee unions, it is really asking Scalia to overturn himself. As labor law expert and Harvard law professor Benjamin Sachs pointed out, Scalia has already addressed “precisely the situation in Harris v. Quinn,” and probably not in the way the WSJ would like. In a previous labor law case, Scalia wrote:

Our First Amendment jurisprudence recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. ... What is distinctive, however, about the 'free riders' who are nonunion members of the union's own bargaining unit is that in some respects they are free riders whom the law requires the union to carry -- indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.

It's too soon to know whether or not Scalia will break the WSJ's heart by jumping aboard not the “liberal bandwagon,” but his own. A decision in Harris is expected by June.

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