WashPost Bewails SCOTUS's 'Blow to Organized Labor,' Buries Viewpoint of Winning Party Deep in Story

July 1st, 2014 6:42 PM

Reporting on the outcome of Harris v. Quinn on the front page of Tuesday's Washington Post, staff writers Jerry Markon and Robert Barnes buried the perspective of the successful party in the case, non-unionized home health care worker Pam Harris, in the 21st paragraph of the 29-paragraph article, "Ruling on union dues a blow to organized labor."

But right out of the gate, Markon and Barnes choreographed a melodrama pitting a narrow conservative majority on the Court versus the nation's labor unions and their valiant liberal defenders on the Court. An excerpt is reproduced below (emphasis mine):


Thousands of home health-care workers cannot be forced to pay union fees if they are not in a union, the Supreme Court ruled Monday, dealing a defeat to organized labor and foreshadowing a potentially far more serious blow to come.

By a 5-to-4 vote, the court’s conservative justices said an Illinois requirement that home health aides help cover a union’s cost of collective bargaining violates their First Amendment right to free speech.

The case had prompted widespread concern among public-sector unions because Illinois had deemed the aides, who are paid by the state, to be public employees. But the court said the aides are only quasi-public because their real employers are their patients.

“If we accepted Illinois’ argu­ment” that the workers can be forced to pay the union fees against their will, Justice Samuel A. Alito Jr. wrote for the majority, “we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

While the decision is a setback for unions that have sought to increase their depleted ranks by organizing the growing sector of home health-care workers, legal experts said its scope is narrow because it applies only to a relatively small segment of employees.

Since the court said the Illinois workers are not full-fledged public employees, they are not covered by a 1977 precedent that says states have the power to require those employees to pay union fees, as long as the fees are not used for political activities.

The decision’s real significance, experts said, lies in the language the court’s conservatives used in attacking that 1977 decision, even as they stopped short of overturning it.

Alito — joined by Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy and Chief Justice John G. Roberts Jr. — devoted page after page to criticizing the earlier decision and its “questionable foundations” before concluding that this was not the right case to overturn it.

While the Roberts court typically avoids upsetting precedent if there are other ways to decide a case, legal specialists and the court’s liberal wing said Alito’s language signaled that an all-out assault on the 1977 case, Abood v. Detroit Board of Education, could be in the offing.

“I think Abood is in serious jeopardy of being overturned if the proper case can be found,” said Joel Barras, a Philadelphia labor and employment lawyer who represents companies and public employers. That, he said, would be “potentially devastating” to organized labor because public-sector unions would lose revenue.

About half the states now use the 1977 law to require union fees from public-sector workers even if they are not in a union.

Justice Elena Kagan, writing for the court’s four dissenters, also seemed to be previewing the arguments to come if the conservative majority takes up a direct challenge to Abood.

The precedent of allowing states to require the union fees is “deeply entrenched,” she wrote, “and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation.”

Kagan wrote that “the majority could not restrain itself from saying (and saying and saying)” that it dislikes Abood. Still “the majority could not, even after receiving full-dress briefing and argument, come up with reasons anywhere near sufficient to reverse the decision.”

Kagan was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

By contrast, the winning party in the case got much less ink and her perspective was buried deep in the story:

Pam Harris, one of eight Illinois home health aides who had sued the state over the union fee requirement, hailed the ruling. “We celebrate knowing that Illinois moms linked arms and refused to be bullied,” she said. “Families in Illinois can relax knowing their homes are safe from being a union workplace and there will be no third party intruding into the care we provide our disabled sons and daughters.”

The home health aides provide care to elderly Medicaid recipients who cannot live alone without assistance. Many of the aides, known as personal assistants, are relatives of the person receiving care.

It should be fairly obvious why relatives of sick patients might oppose being forced into a union for what amounts to their labor of love for a family member in need, but this perspective was not explored in any depth by Markon or Roberts, perhaps in no small part because it cuts against the left-wing pro-union narrative the paper wanted to weave here.