The beginning of the end? Photographer: Scott Olson/Getty Images
The beginning of the end? Photographer: Scott Olson/Getty Images

Under Chief Justice John Roberts, the Supreme Court is perfecting the art of the courtroom striptease.

Earlier this session, it shed yet another layer of campaign-finance law, striking down limits on the total amount that individuals may contribute to political candidates and parties. Reading between the lines of the 5-4 decision in that case, McCutcheon v. Federal Election Commission, suggests that the whole legal foundation upon which all campaign regulations are constructed, 1976's Buckley v. Valeo, may yet crumble.

Today the court’s majority was at it again, this time peeling off another layer of U.S. labor law. In Harris v. Quinn, the court made the right move in finding that Illinois home health-care workers, as “partial public employees,” can’t be compelled to pay union fees, as other public employees are. The ruling follows a 2012 Supreme Court decision limiting the rights of unions to increase their fees without proper notice. And it sets up the question -- already working its way through the federal courts -- of whether a 1977 court decision, Abood v. Detroit Board of Education, which upheld government’s authority to compel government employees to pay union dues, should be overturned.

In about half the states, public employees are required to pay the fees, though they can opt out of paying for their union’s political campaigns and lobbying activity. The home health-care workers who brought the suit argued that any mandatory union fee violates their First Amendment rights, because petitioning the government -- including lobbying over work rules and benefits -- is inherently political. A government employee, the argument goes, who supports giving workers the right to choose a 401(k)-style retirement plan instead of a traditional public pension should not be forced to support a union that opposes it.

The Supreme Court could have overturned Abood by ruling that any forced payment violates workers’ First Amendment rights. But, as in McCutcheon, it narrowly tailored its decision while casting aspersion on the 1970s-era precedent. The majority called Abood an “anomaly” resting on “questionable foundations,” charging that the 1977 court had “seriously erred” in its reading of precedents, which it “fundamentally misunderstood.”

The very first sentence of the Harris decision is its most important: This case, it states, "presents the question whether the First Amendment permits a state to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.” Swap out “personal care providers” for “public employees,” and it is difficult to see why the same First Amendment protections should be any different.

In both this decision and McCutcheon’s redefinition of corruption, it may be that the votes did not exist for overturning the 1970s rulings outright -- and won’t in the future, either. Or it may be that at least one member of the majority, possibly the chief justice himself, wants to change things a little at a time, in the name of judicial restraint.

Justice Elena Kagan’s dissent took issue with the majority’s treatment of Abood and rejected the argument that all communication between workers and government is protected political speech. But the relationship between a public-sector labor union and a government -- which is itself a representative of the people, including its employees -- is inherently different from that between a private-sector organization and its workforce.

President Franklin Roosevelt recognized that difference and viewed the formation of public-sector unions as a threat to democracy. Yet one need not oppose them to see forced payments to them as an unacceptable infringement on First Amendment rights. If the Supreme Court eventually reverses Abood, public-sector union leaders will have to work harder to attract members and generate revenue. Yet their ultimate future will not be determined by the court. It will be determined by whether workers view membership as something worth paying for.

To contact the senior editor responsible for Bloomberg View's editorials: David Shipley at davidshipley@bloomberg.net.