This past Monday, the Supreme Court’s gang of five conservative justices lobbed a small grenade into the trenches of the labor movement—and then headed off for summer vacation. The grenade, which took the form of Justice Samuel Alito’s majority decision in Harris v. Quinn, was not the death-bomb many feared, but it will arguably go down as one of the most anti-labor rulings flung from the bench in recent years.
At the heart of Harris v. Quinn was the life-and-death question of whether public unions would be able to sustain their collective bargaining operations and, in essence, themselves. More specifically, the case torqued around the issue of whether publicly funded home health-care workers who enjoy the benefits of collective bargaining but are not themselves union members can be required to pay union fees (“fair-share fees” or “agency fees”). The ruling had been anxiously anticipated among labor supporters, who feared the Court would take the opportunity to wax expansive and simply declare—poof!—that public unions cannot request such fees. If that happened, public unions would effectively be transformed into “right-to-work” shops—husk-like operations hollowed out by years of non-union members enjoying free rides off the unions they claim to disdain.
In the end, the Court took a more targeted approach. Rather than exempting all public employees from paying agency fees, Alito created—and exempted—a new category of worker, the “partial public employee.” Because these workers are paid by the government but hired, fired and managed by individual clients, Alito declared, they are neither fully of the public sphere, nor fully of the private, but hover in some liminal, unprotected half-space.
The Court’s modified ruling was initially greeted with relief, but as the full text of Alito’s words has begun to sink in, serious questions have begun to swirl around just how narrow the decision really is. What, for instance, is this strange new creature, the “partial public employee”? Is it a fixed and static category, or some shifty amoeba-like thing that can change form and even substance to fit the circumstance? What do Alito’s relentless, rhetorical attacks on Abood v. Detroit Board of Education, the 1977 case that first required “fair share” fees, portend for the future of unions? And why do the women workers and workers of color keep losing out on the right to be considered full employees?
To help sort through these and other questions, we have gathered up a group of scholars and activists and asked them to expound. They include Eileen Boris and Jennifer Klein, Joel Rogers, Joshua Freeman and Jane McAlevey. Their pieces range from meditations on what Harris v. Quinn means for the vast corps of women (particularly women of color) who make up this new “partial public employee” category to the way the Court has warped the First Amendment into a scythe to slice apart some of our most basic social protections. And if the meditations are not always cheery, well, this isn’t a particularly cheery topic. Then again, it’s not hopeless either. As McAlevey argues, labor still has time to save itself.