The U.S. Supreme Court still has 11 cases left to decide with the end of its term looming at the end of the month. We asked SLU LAW professors Roger Goldman and Matt Bodie to give their expert commentary on a few of these cases in advance of those decisions. We’ll follow up with Professors Goldman and Bodie for reactions once these cases have been decided.
Additionally, we’ll have a reaction from SLU LAW Adjunct Professor Mal Harkins upon the decision in the Hobby Lobby case. Professor Harkins will be in attendance at the Supreme Court on the day of the decision. He wrote a piece for the Health Affairs Blog that gives an overview of the case.
Professor Roger Goldman on Cell Phone Search Cases
Two Fourth Amendment cases of first impression will be decided by the Supreme Court this month, both raising the question of whether warrantless searches of cell phones are permitted incident to the arrest of a defendant.
United States v. Wurie involved officers’ viewing the call log of a “flip phone.” Riley v. California involved a search of the digital contents of a smartphone, specifically photographs. The cases were argued separately, and it is possible that the Court could distinguish the older generation of cell phone technology in the Wurie case from the newer, smartphone generation of cell phones, which contain large amounts of personal information.
Although the parties argued for bright line rules — defendants’ advocating for the position that search warrants were always needed before a cell phone could be searched unless there were exigent circumstances, while California and the United States argued that the well-recognized search incident to arrest exception should apply to cell phone searches — the justices explored possible middle grounds.
In questioning the lawyers for the government, the justices were particularly concerned about an arrest for a minor crime — not wearing a seatbelt — followed by a search of a smartphone that contains e-mail messages, medical data, bank records, photographs, etc. So exempting minor crimes from warrantless cell phone searches could be a solution. Another limitation could be prohibiting warrantless cell phone searches unless the phone could contain evidence of the crime of arrest — that would exclude a search of the phone for seatbelt violations but would permit a search if the arrest was for drug dealing.
The justices’ concerns of requiring the police to seek warrants prior to searching cell phones were twofold: waiting for the warrant could result in the contents being put into encryption mode thereby preventing the police from recovering the data; second, technology is available that automatically erases the contents of the phone so that it would never be available.
Predicting the outcomes of the cases is hazardous given the ever-changing technology, the limitless amount of information stored on smartphones compared to the physical items carried on one’s person, and the sophistication of persons engaged in crime today. It is safe to assume that the Court’s opinion will be a narrow one.
Professor Matt Bodie on the Public Employee Unions Case
In Harris v. Quinn, the Supreme Court will decide a very narrow issue: whether the state of Illinois can agree to a contract with home health care workers that includes the deduction of union dues from their payments. However, the ramifications of this decision have the potential to sweep quite expansively. The Court could move on to decide, at the behest of union critics, to condemn the standard system of public-employee unionism found in states across the country. The potential for a broader holding, signaled by Justice Alito in the 2012 case of Knox v. SEIU Local 1000, is why this case is generating such attention.
In many ways, the facts of Harris v. Quinn are quirky. The employees at issue are health care workers who care for disabled individuals in their own homes and are paid by the state through federal Medicaid funding. However, the Medicaid-eligible individuals hire their own workers and are responsible for overseeing the care provided. The named plaintiff in this case, Pamela Harris, receives state funding for the care she provides to her son. Illinois has defined this group of home health care workers as public “employees” for the purpose of collective bargaining with the state concerning the program. A majority of the employees choose a local chapter of the Service Employees International Union (SEIU) to represent them, and the union and Illinois negotiated an agreement outlining the terms of the relationship between the state and the workers. This agreement included an automatic deduction of union dues from the workers’ payments. Ms. Harris objected to the deduction and sued for relief under the First Amendment.
The automatic dues deduction or “check-off” is part of a system of majoritarian union representation that is almost uniquely American. In other countries, unions generally represent only those workers that have chosen such representation. However, under the federal National Labor Relations Act (NLRA), private employees only enjoy the rights to official recognition of their collective representative if a majority of those employees choose the union. It is a majority-takes-all system; the union represents all of the employees or none of them. In “right-to-work” states, employees cannot be required to pay union dues, while in “fair share” states, the union and the employer can agree to deduct dues automatically for worker paychecks. However, because the NLRA does not apply to state governments’ relationships with their own employees, each state is relatively free to establish its own method of collective bargaining. Some states do not allow for collective bargaining, while other states have systems akin to the NLRA. Illinois, which is a “fair share” state for its private employees, has provided a similar system for its public employees, including the home health care workers.
The continuing legality of that system is what is in doubt in Harris. In Abood v. Detroit Board of Education (1977), the Court held that dues checkoff provisions were constitutional under the First Amendment as long as employees could opt out of paying for any speech-related activities. Under Abood, unions have had to segregate their expenditures between collective-bargaining related activities and speech-related activities and allow employees to opt out of expenses not related to collective bargaining. However, two years ago the Court’s decision in Knox cast doubt on the continuing vitality of Abood, noting that compelling employees to pay any portion of their union dues was an “anomaly” under First Amendment jurisprudence. Despite the saber-rattling language, the Court at that time left Abood largely intact. In Harris, however, the petitioners and many amici have argued that the Court should overrule Abood and prevent states and unions from requiring any amount of dues to unions if the employee wishes to opt out.
There are certainly grounds for a narrower opinion, even granting a win for the plaintiffs here. The Court could disagree with Illinois, and with the court of appeals below, and hold that the home health care workers are not really even state “employees” and thus not entitled to union protection. The Court could also note the set of relationships here between the workers, the state and the federal Medicaid program, and hold that the employees’ terms and conditions of employment are uniquely entangled with federal programs such that any collective bargaining would amount to First-Amendment-protected activity. Even if the Court were to overrule Abood, it would not be the “end” of public employee unionism, as many commentators have proclaimed, as unions would still be entitled to represent state workers.
However, striking down Abood, or even just holding this particular collective agreement to be unconstitutional, would collapse the economic support structure for the unions in these situations. As I mentioned earlier, states decide what system of collective protections they want to provide to their public employees. It makes a lot of sense for a state to promote a democratic system of workplace governance whereby employees choose a representative that can bargain on their behalf with the government. In Harris, the union worked with the state to set up training programs and a grievance-arbitration system for the home health aides. It also makes a lot of sense for a state to want a collective-representation system to provide for majority representation, so the state need not have the hassle and confusion of dealing with two or more types of representatives for the same set of employees. And given the requirement that the union represent all of the workers in a particular group, it makes sense for all of the workers to pay for the costs of their representation. If the Court strikes down Abood, the economic incentives for unions to represent groups of public employees will be severely limited, and may lead to the end of any majoritarian system of public employee unionism. Unions may simply no longer have the financial means to pay for collective representation when it is in each individual employee’s own self-interest not to pay a dime.
It is quite possible that the Chief Justice, as he did in the NFIB v. Sebelius, will lead the Court to a middle ground in which aspects of this type of program are found to be unconstitutional but Abood as a whole is preserved. And, perhaps surprisingly, Justice Scalia may join him there, as he has affirmed the economic rationality of required union support in the past. But with so much in play, court observers have flagged Harris v. Quinn as one of the most important cases to watch this term.
An amicus brief that I wrote with Professor Charlotte Garden of Seattle University School of Law, and signed by 33 labor law professors, can be found HERE.