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WASHINGTON — A broad challenge to public sector unions was met with a mixed response Tuesday at the US Supreme Court.

The case, brought by Illinois workers who provide home health care to Medicaid recipients, could have been argued on narrow grounds. But the workers’ lawyer decided to go big.

The lawyer, William L. Messenger of the National Right to Work Legal Defense Foundation, asked the high court to overrule a foundational 1977 decision and to declare that government workers may not be forced to pay dues to unions to represent them in collective bargaining negotiations if they disagree with the positions the unions take.


Justice Elena Kagan said that was quite a request.

“It is a radical argument,” she said of Messenger’s position. “It would radically restructure the way workplaces across this country are run.”

The question of how to treat public sector unions is one for lawmakers, she added, not judges. “It raises considerable heat and passion and tension as we recently saw in Wisconsin,” Kagan said. “But, you know, these are public policy choices that states make.”

Other justices, however, seemed receptive to Messenger’s argument, saying that the First Amendment limits what government workers may be forced to do to support bargaining positions they differ with.

“Your position,” Justice Anthony M. Kennedy told Paul M. Smith, the lawyer for the health care workers union, “is that the public employees must surrender a substantial amount of First Amendment rights to work for the government.”

In 1977, in Abood v. Detroit Board of Education, the Supreme Court said that teachers who declined to join a union could, nevertheless, be required to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”

But workers may not be forced to help pay for a union’s purely political activities, the court added.


On Tuesday, Justice Stephen G. Breyer said there was no good reason to overturn the balance struck in 1977. He said he feared that “the courts of the United States are going to fashion, using the First Amendment as their weapon, a new special labor law for government employees.”

The justices’ questions generally hewed to their broader ideological views with the court’s more liberal members supporting the union and its more conservative ones receptive to the dissenting workers’ First Amendment argument.

The exception was Justice Antonin Scalia, who asked a series of questions sympathetic to the union. He was dismissive of the argument that compelled dues frustrate workers’ ability to petition the government and was open to the possibility that eliminating the requirement to pay dues could destroy public sector unions as a practical matter.

“What our cases say,” Scalia said, is “you can be compelled not to be a free rider, to pay for those items of bargaining that benefit you, as well as everybody else.”