Minneapolis, MN – The Supreme Court heard oral arguments this week in Harris v. Quinn, and the ruling could have a devastating impact on public sector workers and their unions.

The case was petitioned to the Supreme Court by the National Right to Work Legal Defense Foundation (NRTW), a right-wing anti-union group.  Harris v. Quinn narrowly looks at whether or not home care workers in the state of Illinois are public employees with the right to unionize. Illinois law allows home care workers to unionize, though in the case in question, the workers actually voted against having any union representation. Despite that, the NRTW appealed the case to the Supreme Court, seizing an opportunity to push the highest court to issue a sweeping ruling that would ensure no future unionization opportunities.

The NRTW is not content to have the court rule only on home care representation. They argued that it is unconstitutional for public sector unions to have exclusive representation rights and the ability to collect fair share fees for any public workers, even when the dues are used only for collective bargaining purposes. In essence, they want to turn every state into a ‘right to work’ state for public employees.

The questions posed by the most right-wing members of the Supreme Court made clear that they are salivating at the opportunity to strip the right to unionize from all public workers. A number of commentators have speculated that conservative Justice Antonin Scalia may end up the voice of ‘reason’ on this case. Though Scalia can in no way be considered a friend of labor, many speculate that he is less likely than the other conservatives on the court to reject 40 years of legal precedent recognizing the rights of public workers to unionize. Justice Scalia is also unlikely to want to restrict states’ rights to set their own laws. Union officials are counting on Justice Scalia to be the swing vote ruling in their favor on this case. A decision is expected later this year.

Harris v. Quinn is just the most recent in a series of court cases aimed at breaking unions. It is part of a concerted effort carried out in the courts, state legislatures and federal government to attack workers and defund unions (both public and private sector) by taking away a union’s ability to collect dues. These anti-union efforts have succeeded in Wisconsin, where public sector unions have lost at least 40% of their dues-paying membership since Governor Scott Walker succeeded in destroying collective bargaining for public employees. In Michigan, home of important sit-down strikes, ‘right to work’ is now the law.

Working people and the unions who represent us cannot rely on ‘moderate’ conservatives and narrow legal arguments to protect us. In fact, the law has been established to limit the effectiveness of union organizing and the Supreme Court has ruled time and again to strip us of our rights.

The more effective a strategy is, the more likely it is to be deemed illegal. Sit-down strike, where strikers occupy their worksite, thus preventing the company from bringing in scabs (‘replacement workers’) or finding other means to continue production, are a good example. This tactic was ruled illegal by the National Labor Relations Board after waves of sit-down strikes in the late 1930s led to significant gains for workers. The legality of the sit-down strike made it to the Supreme Court, which they ruled on Feb. 27, 1939, in the case of NLRB v. Fansteel Metallurgical Corporation, that sit-down-strikes were essentially illegal. The court ruled that workers who violated the law, regardless of whether that violation was provoked by a violation of the company, did not have to be reinstated. In other words, any worker who broke the law during a strike could be fired, no matter what.

As Joe Burns, labor lawyer and author of the book Reviving the Strike, states, “We cannot understand or overcome the weakness of the modern labor movement without addressing the role of the judiciary in suppressing labor rights. A century ago the labor movement had a crystal clear understanding of the role of the United States Supreme Court. From the early 1900s into the 1930s, labor activists railed against not just unfavorable labor law decisions but against the very idea that judges should be allowed to intervene in labor matters. From conservative AFL officials to radical unionists, labor activists understood that courts were engaged in judge-made labor law.”

As case after case is pushed to the Supreme Court by groups like the National Right to Work Foundation, labor activists must once again challenge the idea that judges can be trusted to determine labor policy. We must also challenge people to understand that if the laws are put in place to weaken our movement, those laws need to be broken.

The greatest upsurges in labor – the private sector in the 1930s and the public sector in the 1960s – were the result of hundreds of thousands of working people rising up and defying labor laws that were created to prevent us from winning. If we are to rebuild a strong movement of working people, we need to reclaim the tools of our historic successes, and not count on the courts to grant us the permission to use them.

Cherrene Horazuk is President of AFSCME 3800 which represents clerical workers at the University of Minnesota.

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