Harris v. Quinn and the Future of Abood

In response to my post about today’s orders list, I’ve heard the suggestion that Harris v. Quinn is a “sleeper” case in which the Court might overrule or dramatically limit its prior precedent in Abood v. Detroit Board of Education. Abood was a First Amendment/employment decision that says basically that public employers can require all of their employees to pay union dues, so long as those who object are allowed to opt-out of paying the portion of the dues that go to ideological activities.

While my eyes had originally glazed over when seeing the word “medicaid” in the Harris QP, I now take the point; Harris does seem to implicate some similar issues of mandatory contribution and collective representation and Abood’s meaning is disputed by both sides.

While I did not notice an explicit call to overturn Abood in the Harris papers, the Court has already fired a warning shot two terms ago in Knox v. SEIU. In a several-page disquisition that didn’t seem particularly necessary, the Court said that Abood’s tolerance of non-member fees was an “anomaly,” that the opt-out burden “appears to have come about more as a historical accident than through the careful application of First Amendment principles,” and that the Court’s “prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate” (emphasis mine).

Knox also quoted, with apparently complete approval, this passage from a book review by Professor Clyde Summers:

If a community association engages in a clean-up campaign or opposes encroachments by industrial development, no one suggests that all residents or property owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all parents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be required to join. If a medical association lobbies against regulation of fees, not all doctors who share in the benefits share in the costs.

Hence, said the Court, the “anomaly.”

For what it is worth, I am not opposed to going back to first principles and reconsidering the Court’s precedents in this area. But if that is done, it seems to me that both sides of the decision ought to be reconsidered. Knox focuses on dissatisfaction with Abood’s pro-government side, suggesting that the opt-out regime does not provide enough protection for speech. But I am not sure I understand why there is a First Amendment right in the first place.

The government takes my money to spend it on things I disapprove of all the time, through taxation. If my taxes went to support a community association, a parent-teacher association, the AAUP, or a medical lobby, I would not have a First Amendment right to complain. I understand that in the agency-shop case, the nexus between expenditure and exaction is a little more direct, but I am not sure I understand why that matters. So if the Court does indeed go back to first principles in this area, I hope it provides a good explanation of where the First Amendment right comes from.

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