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It has become an annual tradition like the returning of the swallows to the Old Mission in San Juan Capistrano and the Mummer's Day Parade. If it's June, a conservative pro-business majority of the Supreme Court of the United States has just rendered a 5-4 decision that will hurt working families.

The holding in today's case is simple: Illinois can't require home care aides who refuse to join the public union (SEIU-HII) to pay a fair share of the cost that the union incurs when negotiating on their behalf for better terms of employment, even though they benefit from said negotiations. This decision in Harris v Quinn only directly affects such workers, and not public employees' unions in general, but it may represent future chippings-away at workers' rights in cases to come. Still, it's not nearly as bad as it could have been. Let me explain below the fold.

The decision narrowed the reach of an earlier ruling of the court, Abood, which held that state employees who chose not to join a public-sector union could nevertheless be compelled to pay an agency fee to support union work related to the collective-bargaining process. Today's plaintiffs sought to have that rule struck altogether, but instead Alito +4 only limited its reach to exclude these particular workers, because "Abood involved full-fledged public employees, but in this case, the status of the personal assistants is much different.... personal assistants are public employees for one purpose only: collective bargaining. For all other purposes, Illinois regards the personal assistants as private-sector employees."

And so while Justice Kagan angrily rips at the conservative majority for not applying Abood to this case, the dissenters nonetheless celebrate the limits of today's decision:

Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. That is exactly what Illinois did in entering into collective bargaining agreements with the Service Employees International Union Healthcare (SEIU) which included fair-share provisions. Contrary to the Court’s decision, those agreements fall squarely within Abood’s holding. Here, Illinois employs, jointly with individuals suffering from disabilities, the in-home care providers whom the SEIU represents. Illinois establishes, following negotiations with the union, the most important terms of their employment, including wages, benefits, and basic qualifications. And Illinois’s interests in imposing fair-share fees apply no less to those caregivers than to other state workers. The petitioners’ challenge should therefore fail.

While protecting an employee’s most significant expression, [Abood] also enables the government to advance its interests in operating effectively—by bargaining, if it so chooses, with a single employee representative and preventing free riding on that union’s efforts.

For that reason, one aspect of today’s opinion is cause for satisfaction, though hardly applause. As this case came to us, the principal question it presented was whether to overrule Abood: The petitioners devoted the lion’s share of their briefing and argument to urging us to overturn that nearly 40-year-old precedent (and the respondents and amici countered in the same vein). Today’s majority cannot resist taking potshots at Abood, but it ignores the petitioners’ invitation to depart from principles of stare decisis. And the essential work in the majority’s opinion comes from its extended (though mistaken) distinction of Abood, not from its gratuitous dicta critiquing Abood’s foundations. That is to the good—or at least better than it might be. The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.

If the kind of hand-wringing about blurry lines that the majority offers were enough to justify breaking with precedent, we might have to discard whole volumes of the U. S. Reports.

And the majority says nothing to the contrary: It does not pretend to have the requisite justifications to overrule Abood. Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so. Yet they will also know that the majority could not, even after receiving full-dress briefing and argument, come up with reasons anywhere near sufficient to reverse the decision. Much has gone wrong in today’s ruling, but this has not: Save for an unfortunate hiving off of ostensibly “partial-public” employees, Abood remains the law.

And, in conclusion, she writes:
For many decades, Americans have debated the pros and cons of right-to-work laws and fair-share requirements. All across the country and continuing to the present day, citizens have engaged in passionate argument about the issue and have made disparate policy choices. The petitioners in this case asked this Court to end that discussion for the entire public sector, by overruling Abood and thus imposing a right-to-work regime for all government employees. The good news out of this case is clear: The majority declined that radical request. The Court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work.

The bad news is just as simple: The majority robbed Illinois of that choice in administering its in-home care program. For some 40 years, Abood has struck a stable balance—consistent with this Court’s general framework for assessing public employees’ First Amendment claims—between those employees’ rights and government entities’ interests in managing their workforces. The majority today misapplies Abood, which properly should control this case. Nothing separates, for purposes of that decision, Illinois’s personal assistants from any other public employees. The balance Abood struck thus should have defeated the petitioners’ demand to invalidate Illinois’s fair-share agreement. I respectfully dissent.

It's a really good dissent, as all of Kagan's are. Go read it.

Originally posted to Adam B on Mon Jun 30, 2014 at 01:56 PM PDT.

Also republished by Daily Kos.

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