But Justice Samuel A. Alito Jr. has made clear he thinks the Abood decision must go. It conflicts with the "bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support," he wrote.
Alito, President George W. Bush's second appointee, played a key role in the Citizens United case. Before his arrival in 2006, the court with Justice Sandra Day O'Connor had upheld the McCain-Feingold Act and its limits on campaign money. But when Alito replaced her, he helped form the 5-4 majority that struck down a series of campaign laws on free speech grounds.
He then targeted public sector unions. In 2012, he wrote the court's opinion in a California case called Knox v. SEIU involving refunds for employees who did not want to pay for the union's political spending. In that ruling, he questioned the Abood decision and sympathized with employees who would "prefer to keep their own money rather than subsidizing the political agenda of a state-favored union."
His words in turn prompted lawyers for the National Right to Work Foundation to challenge Abood directly. They sued on behalf of home care workers in Illinois, but fell just short in 2014 in the case of Harris v. Quinn. Alito wrote a long opinion casting doubt on the Abood precedent, but the 5-4 majority decided only that the home care workers were not true state employees.
The four liberal justices, all Democratic appointees, dissented, and noted that thousands of union contracts in more than 20 states rely on the principles set in Abood.
Anti-union advocates tried again in Friedrichs v. California Teachers Association, but fell short again because of Scalia's death. The justices will hear Janus v. AFSCME on Feb. 26, expecting this time to finally resolve the dispute.
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