Is Justice Antonin Scalia the swing vote in a major Supreme Court case that could re-examine the legality of public sector unions? It certainly appeared that way during the oral arguments for the case Harris v. Quinn Tuesday morning.

The case involves whether Illinois was right to designate home health care workers who are paid under a Medicaid-funded program as state employees eligible for unionization. The plaintiffs in the case argue the state’s action could result in them be coerced into joining a union.

The case has been closely watched by labor experts because it could possibly overturn a 1977 Supreme Court precedent, Abood v Detroit Board of Education. In that case, the court allowed public sector unions to charge so-called “fair share” fees to non-members. The majority argued the non-members had to pay because they benefited from the union's collective bargaining.

Throwing out Abood would undermine a key source of funding for public sector unions. That would have a major impact on the power of Big Labor in America since government employee unions now account for a majority of union membership overall.

Scalia, usually the most conservative justice, often appeared skeptical of the plaintiff’s case during the arguments. At times he even sounded like a union man himself. He noted, for example, that some private employers favor letting unions have exclusive rights to represent workers because that gives them a single employee representative to deal with.

“They do this as private employers because they think it is in their interest as an employer,” Scalia said to plaintiff’s attorney William Messenger of the National Right To Work Legal Defense Foundation. “Why can’t the government have the same interest?”

Messenger replied that the First Amendment issues in the case trumped that concern, but the justice sound unconvinced.

“Alright, but don’t tell me there is no employer interest. There is an employer interest,” Scalia said.

The plaintiffs are eight home health care workers. Although they accept funding from the state, the money ultimately comes from the federal government and technically the care recipient is their primary employer, not the state.

In addition, the plaintiffs work in private residences, mainly their own, since many care for family members. The “Harris” in the case is Pamela Harris, a homemaker who cares for her developmentally disabled son, Joshua.

Part of her side's argument is that allowing a union to charge them fees interferes with their First Amendment rights because the union may use the money to advocate for positions they don’t agree with.

Scalia seemed to take a dim view of that. He noted that while some people may not want to pay the union on principle, in other cases people who do agree with the union may nevertheless try to get out of paying, if possible, just to save money.

“Is there any way to decide who is doing it just to save money and who’s doing it on principle?” he asked Messenger. The attorney conceded that there was no way.

Paul Smith, who represented the Service Employees International Union in the hearing, told the Washington Examiner afterwards that Scalia’s questions were in line with opinions the conservative justice had expressed previously.

“He’s on record as saying that a ‘fair share’ fee is constitutional,” Smith said. “I think he was just being consistent.”

A conservative observer at the court agreed that Scalia’s questions suggested his vote was in play. The individual added that questions from the other conservative justices appeared to be part of an effort to lobby Scalia back to their side.

For example, Justice Alito noted that the purpose of Abood was to prevent “free riders” who benefit from the union’s negotiating without paying. But what if the person does not want what the union is negotiating for, he asked SEIU’s Smith. “[Would] you say that person is a free rider?”

Yes, Smith replied, clearly frustrating Alito.

The liberal justices by contrast seemed content to let Abood stand. Justice Elena Kagan told Messenger that his brief represented “a radical argument. It would radically restructure the way workplaces across this country are run.”

Justice Stephen Breyer seemed to agree, telling Messenger: “You’re asking us to overturn a case that has been the law for 35 years.”

Michelle Harris, a plaintiff in the case – and daughter of Pamela Harris, who could not attend — said afterwards that she remained optimistic. She also said she remained stunned that the case made it all the way to the Supreme Court. “They don’t usually hear from people like us.”

For more background on the case, see my Jan. 6 column, “Meet the homemaker who could end Illinois' effort to unionize home health care.”