That was the question courtroom observers were asking Tuesday when
a potentially pivotal labor case was argued before the U.S. Supreme
UP IN THE AIR: In a case pitting free speech against union power, Scalia sounded sympathetic to the union. He's likely to be the swing
At issue was whether Pam Harris and other home care workers like her
should be forced to pay money to a union they don't want to belong
Harris, of Lake County, is caring for her 25-year-old disabled son,
Josh, and receiving assistance from the state of Illinois to do so.
Gov. Pat Quinn issued an executive order designating Harris and
other homecare workers as "state employees" for the purpose of
joining a union.
Service Employees International Union, a political ally of the
governor's, then began trying to organize the workers.
"I think that there's an unhealthy relationship between elected
officials and public-sector unions," Harris told Illinois News
Network last week.
While the segment of workers Harris is a part of was affected by an
executive order issued by Quinn, Rod Blagojevich issued similar
orders while he was governor.
Justice Samuel Alito expressed skepticism of governors' motivations
to help unions.
"I thought the situation was that Gov.
Blagojevich got a huge campaign contribution from the union, and virtually as
soon as he got into office he took out his pen and signed an executive order
that had the effect of putting, what was it, $3.6 million into the union
But Illinois Attorney Lisa Madigan, whose office argued the case
against Harris, said the state does have a compelling interest in
promoting union representation of these workers.
"What the State of Illinois has had to do, as you heard during the
argument, is find a mix of benefits so we're able to attract and
retain a high-quality workforce," she said. "And quite frankly,
before there was an exclusive representative engaged in collective bargaining,
that was not the case in Illinois."
Between 2002 and 2012 Madigan received $779,773 in campaign
donations from government worker unions, including $129,000 from the
The court's four more liberal justices appeared to oppose changing
In fact, Justice Stephen Breyer said if the court were to do so it
would overturn 35 years of established legal precedent.
On the other hand, some of the more conservative members of the
court Chief Justice John Roberts, Alito and Justice Anthony
Kennedy appeared ready to side with Harris and the others who
brought the lawsuit. Justice Clarence Thomas did not ask questions
during oral arguments, which is his practice.
That leaves Scalia, usually a stalwart conservative, as the
potential swing vote on what seems to be a case centered on freedom
Workers who refuse to join a union are often charged a
"representation fee," which is supposed to cover the cost of things
like collective bargaining but not union political activities.
Kennedy noted that defining what is and isn't political activity is
difficult. For example, he said collective bargaining for government
workers affects the size of government something that has
political implications "in an era where government is getting bigger
and bigger, and this is becoming more and more of an important issue to more
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If the court finds in Harris' favor, public-sector labor unions
could be weakened, Harvard Law School Professor Benjamin Sachs, an
expert on labor law and a former SEIU attorney, told INN in an
interview last week.
If the court issues a narrow ruling, it could say that home care
workers are not state workers and can't be compelled to give money
to a union. This would deprive unions of a significant amount of
revenue that they are now receiving.
In fact, some justices expressed skepticism about whether these
workers, many of whom are caring for relatives, really meet the
definition of state employees.
Alito noted that if a home care worker were to make a mistake
resulting in a patient's death, the state would not be liable because
in that context the workers are not considered state employees.
But the high court also could hand down a broader ruling that could
have an even greater impact on public-sector unions, Sachs said.
In such a ruling, the high court would rule that government workers
cannot be compelled to give money to a union based on First
SUPREME FIGHTER: Pam Harris and her son Josh.
The attorneys representing Harris contend her right to free speech
is being infringed upon because she is being compelled by government
to pay a union to advocate a point of view in collective bargaining
that she may not agree with.
Sachs said unions fear the justices will buy into this argument
because some workers may decide not to contribute to the union but
still could benefit from the union's collective bargaining
"In right-to-work states, you have more free riders,' and unions
there are not as strong," he said.
Scalia asked several questions and made statements sympathetic to
In summing up the Supreme Court's past rulings, he said, "You can be
compelled not to be a free rider, to pay for those items of bargaining that
benefit you as well as everybody else."
The Supreme Court is expected to rule on the case
Harris, for her part, doesn't see herself as a potential "free
rider." In fact, she doesn't consider herself a state employee,
adding she is just a mother looking after her son.
"I'm only doing this because it's the right thing for Josh. I didn't
want I didn't seek out publicity or to become the face of
changing public-sector unions. I just really wanted to do what was right for
Scott Reeder is a veteran
Statehouse reporter and the journalist in
residence at the Illinois Policy Institute. He can be reached at
firstname.lastname@example.org. Readers can subscribe to his free
political newsletter by going to
ilnews.org or follow his work on
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