Under Chief Justice John Roberts, the Supreme Court is perfecting the art of the courtroom striptease.
Earlier this session, it shed yet another layer of campaign-finance law, striking down limits on the total amount that individuals may contribute to political candidates and parties. Reading between the lines of the 5-4 decision in that case, McCutcheon v. Federal Election Commission, suggests that the whole legal foundation upon which all campaign regulations are constructed, 1976’s Buckley v. Valeo, may yet crumble.
On Monday the court’s majority was at it again, this time peeling off another layer of U.S. labor law. In Harris v. Quinn, the court made the right move in finding that Illinois home health-care workers, as “partial public employees,” can’t be compelled to pay union fees, as other public employees are. The ruling follows a 2012 Supreme Court decision limiting the rights of unions to increase their fees without proper notice. And it sets up the question — already working its way through the federal courts — of whether a 1977 court decision, Abood v. Detroit Board of Education, which upheld government’s authority to compel government employees to pay union dues, should be overturned.
In about half the states, public employees are required to pay the fees, though they can opt out of paying for their union’s political campaigns and lobbying activity. The home health-care workers who brought the suit argued that any mandatory union fee violates their First Amendment rights, because petitioning the government — including lobbying over work rules and benefits — is inherently political. A government employee, the argument goes, who supports giving workers the right to choose a 401(k)-style retirement plan instead of a traditional public pension should not be forced to support a union that opposes it.
The Supreme Court could have overturned Abood by ruling that any forced payment violates workers’ First Amendment rights. But, as in McCutcheon, it narrowly tailored its decision while casting aspersion on the 1970s-era precedent. The majority called Abood an “anomaly” resting on “questionable foundations,” charging that the 1977 court had “seriously erred” in its reading of precedents, which it “fundamentally misunderstood.”