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Feldman: Court doesn’t kill unions. Yet.

Labor unions lost a legal battle Monday as the U.S. Supreme Court held, 5-4, that “partial” public employees can’t be required to contribute to unions to cover the cost of collective bargaining. The unions averted, for now, a far greater disaster: the possibility that the court would reverse its precedent and hold that no public employees at all can be made to contribute to unions’ collective-bargaining costs. That result could’ve broken many public unions. But the sword of Damocles still hangs over them.

The background to the case is a landmark decision called Abood v. Detroit Board of Education. When it was decided in 1977, Abood said public employees couldn’t be forced to join a union — that might interfere with their right to free association — but they could be forced to pay their fair share of union dues that pay for collective bargaining. Any portion of dues that would’ve gone to general political speech was deducted. This amounted to a compromise between unions, which wanted nonmembers to be forced to join or pay full dues, and anti-union activists, who wanted workers to be able to opt out completely. One of the Supreme Court’s explicit objectives was to create labor peace.

Monday’s opinion reflects how unions’ political power has diminished since 1977. The plaintiffs in the case were home health care aides who didn’t want to either join the union that Illinois created or pay the “fair share” equivalent of dues. In practice, they argued, making people pay for the union is little different from making them join it — and just as much a violation of the First Amendment right to free association.

Justice Samuel Alito would’ve liked to overrule Abood, he made clear in his opinion, stating in his introduction that the case involved a state requirement to “compel” the home health aides “to subsidize speech on matters of public concern.” This formulation assumes that collective bargaining constitutes speech on a matter of public concern. Thus it contradicts the basic logic of Abood, which reasoned to the contrary that public employees would not have to pay that portion of the dues that went to public political speech.

Ultimately, though, Alito stopped short of overturning the precedent. Presumably he couldn’t get Justice Anthony Kennedy to join him; although these days who knows — it might also have been Chief Justice John Roberts who didn’t want a drastic anti-union holding. Instead, Alito took the unusual step of distinguishing the Illinois home health care aides’ union from the union in Abood. He then said that the court declined to “extend” Abood to the different situation — because the premises of the 1977 precedent were weak.

Alito’s distinction between the two unions was rather implausible. True, as public unions go, the home health care aides’ union is a bit unusual. The workers are hired, fired and largely controlled by the Illinois residents who are entitled to home health care coverage under state law. The court said this made the union only a “partial” public union, not a full one.

But the aides’ salaries are paid by the state, so their union’s negotiating partner is the state. Conditions of employment are regulated by state law. In practical terms, therefore, there is no meaningful distinction between the Illinois union and public unions more generally.

The second step of Alito’s dance is stranger still: He eviscerated the logic of Abood. He rejected altogether the case’s core distinction between dues in support of unions’ political speech and dues in support of unions’ collective-bargaining activities. By this logic, Abood should have been overturned. Yet Alito insisted — or was made to insist — he was declining only to extend the case to partial public unions.

As a matter of logic, Alito isn’t altogether wrong. It is, in fact, pretty difficult to distinguish union speech militating for higher wages and better working conditions from other, more general political speech. And over the years the Supreme Court has become increasingly solicitous of free-association rights, even as it has become increasingly anti-union.

Yet Abood’s value was never its imperfect logic but rather its practical wisdom in solving the problem of employees’ free riding on union efforts. In the real world, a public union could hardly function if its members could opt out. The Abood doctrine put a thumb on the scale by enabling legislation to block free riding.

Today, with public unions under intense criticism and with pension reform the order of the day in many states and municipalities, the politics look different. In dissenting, the four liberals expressed “satisfaction” that Abood hadn’t been overruled. In effect, one of the conservatives, probably Kennedy or Roberts, wasn’t prepared to provide the deciding vote against labor unions — for now. But their legal future doesn’t look rosy.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently “Cool War: The Future of Global Competition.” To contact the writer of this article: Noah Feldman at [email protected].

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