Preparing to Open Up Shop: How the Supreme Court Set the Stage to Prohibit Public-sector Agency-shop Provisions in Harris v. Quinn, 134 S. Ct. 2618 (2014)

• Jurisdiction: United States,Federal
• Citation: Vol. 94
• Publication year: 2021

94 Nebraska L. Rev. 477. Preparing to Open Up Shop: How the Supreme Court Set the Stage to Prohibit Public-Sector Agency-Shop Provisions in Harris v. Quinn, 134 S. Ct. 2618 (2014)

Preparing to Open Up Shop: How the Supreme Court Set the Stage to Prohibit Public-Sector Agency-Shop Provisions in Harris v. Quinn, 134 S. Ct. 2618 (2014)

Chris Schmidt

TABLE OF CONTENTS

I. Introduction .......................................... 478

II. Background ........................................... 481

A. A Brief History of Organized Labor in the United States ............................................. 481

1. Unions Revolutionize American Labor .......... 482

2. The Shifting (and Dwindling) Union Landscape ..................................... 483

3. Unions Under Attack .......................... 484

B. Unions' Drive to Survive and Judicial Treatment of Union Security Arrangements ..................... 485

1. Setting Up Shop ............................... 485

2. Hanson and Street Set the Scene ............... 486

3. Abood Draws the Line ......................... 487

III. Harris v. Quinn ....................................... 489

A. Facts and Posture of Harris v. Quinn .............. 489

B. The Majority Opinion ............................. 492

C. The Dissent ....................................... 495

IV. Analysis .............................................. 496

A. Abood's Line Has Been Exposed as Incorrect, Imaginary, and Unworkable ....................... 497

1. Precedential Mistakes ......................... 497

2. Lessons Learned the Hard Way ................ 498

3. Practical Difficulties ........................... 499

B. Applying Exacting First Amendment Scrutiny to Fair-Share Provisions ............................. 500

1. The Lack of Compelling Governmental Interests ...................................... 501

2. A More Narrowly Tailored Approach ........... 503

C. What Harris Means for the Future ................ 505

V. Conclusion ............................................ 508

I. INTRODUCTION

Detroit was once a flourishing American city. With the help of Henry Ford and his revolutionary production techniques, Detroit quickly established itself as the epicenter of the American automobile industry.(fn1) President Roosevelt later used this industrial might to create what was called an "Arsenal of Democracy" during World War II.(fn2) In the 1960s, a new Detroit "factory" emerged; this one geared more towards producing hit music and a sound that defined a culture.(fn3) This blend of blue-collar work ethic and creative genius embodied the American Dream.

Fifty years later, the story is considerably different. Now, Detroit is a "ghost town."(fn4) The city's once massive population has deteriorated at an alarming rate, with parts of the city now completely abandoned due to rapid population decline.(fn5) Growing budget issues led Detroit to file for bankruptcy-the largest municipality to ever do so.(fn6) Numerous factors contributed to the collapse: the decline of the American automobile industry, lack of political leadership, social unrest, the list goes on.(fn7) Furthermore, like a frightening number of cities, Detroit is also burdened by unfunded pension liabilities that will require leaders and employees to work together to reach a balanced and economically sustainable plan.(fn8)

Detroit's struggles became a national concern when the United States government issued a massive bailout to save the automobile giants in late 2008.(fn9) Public institutions-like Detroit Public Schools-are similarly crippled, but must forge their own path forward without a bailout. That leaves Jack Martin, the Detroit Public Schools' Emergency Manager, with the unenviable task of shedding $127 million in accumulated debt.(fn10) The problem stems in part from a decline in student enrollment(fn11) and widespread poverty, but it is the teachers union's ability to impact policy that most complicates mat-ters.(fn12) While unions are in the midst of a noticeable decline,(fn13) teachers' unions remain strong, thanks in part to the Supreme Court's decision in Abood v. Detroit Board of Education.(fn14) Decided in 1977, Abood upheld teachers' unions' right to exact "fair-share" payments from non-members-that is, fees for collective-bargaining costs, but not political and ideological union expenditures.(fn15)

In Harris v. Quinn,(fn16) the Supreme Court had the opportunity to re-examine its previous holding and determine whether Abood 's reasoning withstood renewed scrutiny, or alternatively, whether the precedent was broad enough to encompass quasi-public employees like the state-subsidized home health care aides challenging the compelled union dues. In a 5-4 decision, the majority found the circumstances distinguishable from Abood and ruled the fair-share provision uncon-stitutional.(fn17) By distinguishing from Abood, fair-share provisions remain valid for full-fledged public employees. The decision still gives organized labor reason to worry, however, as Justice Alito and four other Justices methodically criticized the reasoning upon which Abood rests.(fn18)

This Note argues the logical criticism provided in Harris, the current political environment, and harsh economic realities suggest the Supreme Court will likely adopt a more reasonable rule in the near future.(fn19) This new rule would require the Supreme Court to definitively overrule Abood, and hold that fair-share provisions in the public sector amount to compelled speech and are therefore subject to strict First Amendment scrutiny. As was determined in Harris and will be argued here, these arrangements fail such analysis.

Part II of this Note provides an overview of unions, their development, and their current role in American labor. Part II also discusses prior judicial treatment of union security arrangements, particularly fair-share provisions.(fn20) Part III describes the facts in Harris, the holding, and the reasoning used by the majority to reach its decision. Justice Kagan's dissenting opinion raises some meritorious points and is also discussed.(fn21) Lastly, Part IV posits that the Court should have completely overturned Abood, instead of merely distinguishing from it. The majority was correct to criticize Abood, and though precedent should typically be respected, there was-and will continue to be- sufficient justification to overturn it here. Nonetheless, Harris is already changing organized labor and likely indicates the majority's willingness to remedy Abood 's flawed rule as early as the 2016 Term.(fn22)

II. BACKGROUND

A. A Brief History of Organized Labor in the United States

The United States sought to take full advantage of the massive economic boom that followed the industrial revolution, and accordingly took a laissez-faire approach to business regulation during the nineteenth and early-twentieth centuries.(fn23) Big business, Congress, and the courts formed a triumvirate that kept unionism on the outskirts of American labor.(fn24) In 1926, unions scored their first sizable victory with passage of the Railway Labor Act (RLA), which allowed rail employees to unionize.(fn25) However, it was not until Congress enacted the Wagner Act, now known as the National Labor Relations Act (NLRA), that unionization truly began to grow.(fn26)

1. Unions Revolutionize American Labor

Unions burst onto the labor scene almost immediately after the NLRA went into effect.(fn27) In two short decades-from the mid-1930s to the early-1950s-organized labor became a prominent feature of the American labor environment. Fueled first by the Great Depression and later the post-World War II economic boom, union membership density peaked in 1953.(fn28) The rise in population and emergence of public labor unions helped the absolute number of union members grow until 1979, when overall union membership reached its apex at approximately 21 million.(fn29) This strength in numbers helped create powerful negotiating leverage that can still be seen today, as unionized workers receive roughly $10,500-or over twenty-five percent- more annually than their non-unionized counterparts on average.(fn30)

2. The Shifting (and Dwindling) Union Landscape

Since its peak, union membership has been on a steady, but significant decline. The most recent statistics from the Bureau of Labor Statistics reveal that only 11.1% of wage and salary workers, or 14.6 million individuals, currently belong to a union.(fn31) Accompanying this general decline is a "revolutionary" transformation of the prototypical union member.(fn32) Historically, unions existed primarily in the private sector, but the roles have drastically reversed. "The percentage of the private-sector workers that [are] union members declined more than five-fold from 37% [in 1960]" to just 6.6% in 2013.(fn33) Conversely, "the percentage of the public sector work force who [are] union members [has] increased nearly four-fold, from 9.8% in 1960" to 35.7% in 2014.(fn34) Public-sector unionism reached a milestone in 2009 when it surpassed private-sector unions in regards to total membership for the first time.(fn35)

3. Unions Under Attack

"Faced with growing budget deficits and restive taxpayers, elected officials from Maine to Alabama, Ohio to Arizona, are pushing new legislation to limit the power of labor unions...