In 2014, the United States Supreme Court held in Harris v. Quinn that a quasi-public employee cannot be compelled to pay even her fair share of collective bargaining costs associated with union representation because such agency-shop provisions constitute compelled speech in contravention of the First Amendment. The decision was significant standing alone, as it directly affects personal assistants in the twenty-five states that are not so-called “right-to-work” states, and likely similarly applies to a vast number of other individuals who can be properly characterized as quasi-public. Perhaps more important is what Harris might mean for the larger world of public-sector unions, however. This Note posits that Harris was a sign that the Court may soon reconsider its previous holding in Abood v. Detroit Board of Education, a 1977 decision that upheld fair-share provisions in the public sector notwithstanding the same First Amendment concerns at issue in Harris. Part II provides an overview of public-sector unions and the role organized labor plays in our country today. Part III discusses the facts in Harris, Justice Alito’s majority opinion, and Justice Kagan and Co.’s dissent. Lastly, Part IV posits that the Court was correct in holding agency-shop provisions violate the First Amendment, but should have affirmatively overruled Abood to hold such provisions unlawful for quasi-public and public-sector employees alike. Nonetheless, Part IV also suggests that Harris’s temporary restraint is in line with the Roberts Court’s practice of “stealth overruling”—that is, chipping away at precedent so as to lay the foundation for a subsequent case to deal the fatal blow. It is clear today that the Note was correct in predicting the Court would provide itself an opportunity to overrule Abood and use Harris as support, as the Court indicated it would do so when it granted cert in Friedrichs v. California Teachers Ass’n. What is less clear, however, is whether the Note correctly predicted the coming demise of fair-share provisions with the Court now almost certainly split 4-4 on the issue and the next Justice holding the swing vote.
Preparing to Open Up Shop: How the Supreme Court Set the Stage to Prohibit Public-Sector Agency-Shop Provisions in Harris v. Quinn, 134 S. Ct. 2618 (2014),
94 Neb. L. Rev. 477
Available at: https://digitalcommons.unl.edu/nlr/vol94/iss2/7