Remember when the Senate confirmed Barack Obama’s Supreme Court nominee, Merrick Garland, the veteran federal appeals court judge, to replace Justice Antonin Scalia, who died suddenly two years ago this month? It was a brilliant tactical move by Mr. Obama — picking a moderate, widely respected jurist who had won the highest praise from top Republicans, and giving the court a majority of Democratic-appointed justices for the first time in nearly half a century.
Oh, right. That’s not what happened.
Let’s pause to recall once again what did happen: Justice Scalia’s body wasn’t even in the ground before Mitch McConnell, the Senate majority leader, said he would refuse to consider any nominee President Obama might put forward. The reason, he claimed, was the importance of letting Americans “have a voice in the selection” by voting in the presidential election, which at the time was nine months off. It was his coded way of saying he intended to preserve the court’s Republican-appointed majority at any cost.
Against long odds, Mr. McConnell won. Now parked for life in the seat where Judge Garland should be sitting is the ultraconservative Neil Gorsuch, who we’re supposed to believe represents the “voice” of a citizenry that preferred Hillary Clinton by a margin of nearly three million votes.
That enormously consequential swap is already having concrete effects on American society, and very likely will determine the outcome of a case the justices heard on Monday — a challenge to the ability of public-sector unions to charge nonmembers for expenses related to collective bargaining, such as negotiations over wages, hours and working conditions. The plaintiff says his First Amendment rights are violated by being forced to pay these so-called fair-share fees to a union whose political positions he disagrees with.
Legally, this should be an easy win for the unions. The Supreme Court upheld fair-share fees four decades ago in a unanimous ruling it has reaffirmed repeatedly, and on which more than 20 states have relied in negotiating thousands of contracts covering millions of public employees, including firefighters, teachers and police officers. The logic is simple: When the government is an employer, it has more control over its employees’ speech than over that of regular citizens. Any burden the fees impose on employees’ First Amendment rights is justified by the need to eliminate free riders — workers who enjoy union benefits without having to pay for them, which can deplete the unions’ resources in states where they are legally required to represent all workers, members and nonmembers alike. Anti-union advocates dismiss the free-rider concern, but it’s very real: In states that have ended the fees, more than one-third of public-school teachers are free riders.
None of this seems to register with Justice Samuel Alito Jr., who has made no secret of his dislike for that 1977 opinion, Abood v. Detroit Board of Education, and has been searching for the votes to overturn it for at least six years, writing opinions intended to set up its demise. Justice Alito probably assumed he had victory in hand in 2016, when the court considered the same question in a case brought by California public-school teachers against their union. But when Justice Scalia, whose remarks during oral arguments strongly suggested he would provide the fifth vote against the union, died a few weeks later, the case deadlocked.
As it turned out, Justice Scalia’s death only briefly slowed the march of corporate interests that have sought for years to protect their huge profits and kill off the last remnants of organized labor in America. They and the right-wing groups that support them quickly regrouped around another plaintiff, a child-support specialist from Illinois named Mark Janus, who makes the same argument the California teachers did: Activities by public-sector unions are inherently political, so it’s impossible to separate the costs of collective bargaining from those of political lobbying. No matter what benefits the unions negotiate on his behalf, he shouldn’t have to pay a dime. Mr. Janus lost decisively in the lower federal courts for the same reason the teachers did: the Supreme Court’s precedent in the Abood case.
That precedent should guide the justices here, too. Beyond the court’s core principle of stare decisis, which keeps it from overturning its own prior decisions except in extraordinary circumstances, the Abood decision reasonably balanced workers’ First Amendment rights against the government’s interest in labor peace. Two notable conservative scholars go further, arguing in a supporting brief to the court that the First Amendment does not apply at all in this case. The government is allowed to compel subsidies of others’ speech all the time without violating the Constitution, they point out, such as by collecting and spending taxes.
In Monday’s arguments, several of the conservative justices seemed immune to such reasoning. Justice Alito referred to fair-share fees as “compelled speech” that infringes on a worker’s “dignity and conscience.”
But the true goal of this litigation strategy has never been to protect workers’ speech rights; it is, as Justice Sonia Sotomayor rightly said, “to do away with unions,” which not only make life a little harder for the world’s plutocrats, but have also become a potent organizing tool in Democratic politics. One recent paper by political scientists found Democrats’ share of the presidential vote fell 3.5 percentage points in states that eliminated fair-share fees. In Wisconsin, public-sector union membership fell by half after the state’s newly Republican leadership eliminated the fees in 2011.
Justice Gorsuch was silent on Monday, but it’s hard to imagine he will vote with the unions. Since joining the court last April, Justice Gorsuch has voted nearly all of the time with the other most conservative justice, Clarence Thomas. Had the seat he occupies been filled by Merrick Garland, it’s unlikely the case would have been brought at all.
Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment, and of the degree to which Mr. McConnell may have altered the course of history with his cynical ploy. After all, President Trump will be in power until 2025 at the latest, but Justice Gorsuch could easily be issuing opinions four decades from now.
Oh, right. That’s not what happened.
Let’s pause to recall once again what did happen: Justice Scalia’s body wasn’t even in the ground before Mitch McConnell, the Senate majority leader, said he would refuse to consider any nominee President Obama might put forward. The reason, he claimed, was the importance of letting Americans “have a voice in the selection” by voting in the presidential election, which at the time was nine months off. It was his coded way of saying he intended to preserve the court’s Republican-appointed majority at any cost.
Against long odds, Mr. McConnell won. Now parked for life in the seat where Judge Garland should be sitting is the ultraconservative Neil Gorsuch, who we’re supposed to believe represents the “voice” of a citizenry that preferred Hillary Clinton by a margin of nearly three million votes.
That enormously consequential swap is already having concrete effects on American society, and very likely will determine the outcome of a case the justices heard on Monday — a challenge to the ability of public-sector unions to charge nonmembers for expenses related to collective bargaining, such as negotiations over wages, hours and working conditions. The plaintiff says his First Amendment rights are violated by being forced to pay these so-called fair-share fees to a union whose political positions he disagrees with.
Legally, this should be an easy win for the unions. The Supreme Court upheld fair-share fees four decades ago in a unanimous ruling it has reaffirmed repeatedly, and on which more than 20 states have relied in negotiating thousands of contracts covering millions of public employees, including firefighters, teachers and police officers. The logic is simple: When the government is an employer, it has more control over its employees’ speech than over that of regular citizens. Any burden the fees impose on employees’ First Amendment rights is justified by the need to eliminate free riders — workers who enjoy union benefits without having to pay for them, which can deplete the unions’ resources in states where they are legally required to represent all workers, members and nonmembers alike. Anti-union advocates dismiss the free-rider concern, but it’s very real: In states that have ended the fees, more than one-third of public-school teachers are free riders.
None of this seems to register with Justice Samuel Alito Jr., who has made no secret of his dislike for that 1977 opinion, Abood v. Detroit Board of Education, and has been searching for the votes to overturn it for at least six years, writing opinions intended to set up its demise. Justice Alito probably assumed he had victory in hand in 2016, when the court considered the same question in a case brought by California public-school teachers against their union. But when Justice Scalia, whose remarks during oral arguments strongly suggested he would provide the fifth vote against the union, died a few weeks later, the case deadlocked.
As it turned out, Justice Scalia’s death only briefly slowed the march of corporate interests that have sought for years to protect their huge profits and kill off the last remnants of organized labor in America. They and the right-wing groups that support them quickly regrouped around another plaintiff, a child-support specialist from Illinois named Mark Janus, who makes the same argument the California teachers did: Activities by public-sector unions are inherently political, so it’s impossible to separate the costs of collective bargaining from those of political lobbying. No matter what benefits the unions negotiate on his behalf, he shouldn’t have to pay a dime. Mr. Janus lost decisively in the lower federal courts for the same reason the teachers did: the Supreme Court’s precedent in the Abood case.
That precedent should guide the justices here, too. Beyond the court’s core principle of stare decisis, which keeps it from overturning its own prior decisions except in extraordinary circumstances, the Abood decision reasonably balanced workers’ First Amendment rights against the government’s interest in labor peace. Two notable conservative scholars go further, arguing in a supporting brief to the court that the First Amendment does not apply at all in this case. The government is allowed to compel subsidies of others’ speech all the time without violating the Constitution, they point out, such as by collecting and spending taxes.
In Monday’s arguments, several of the conservative justices seemed immune to such reasoning. Justice Alito referred to fair-share fees as “compelled speech” that infringes on a worker’s “dignity and conscience.”
But the true goal of this litigation strategy has never been to protect workers’ speech rights; it is, as Justice Sonia Sotomayor rightly said, “to do away with unions,” which not only make life a little harder for the world’s plutocrats, but have also become a potent organizing tool in Democratic politics. One recent paper by political scientists found Democrats’ share of the presidential vote fell 3.5 percentage points in states that eliminated fair-share fees. In Wisconsin, public-sector union membership fell by half after the state’s newly Republican leadership eliminated the fees in 2011.
Justice Gorsuch was silent on Monday, but it’s hard to imagine he will vote with the unions. Since joining the court last April, Justice Gorsuch has voted nearly all of the time with the other most conservative justice, Clarence Thomas. Had the seat he occupies been filled by Merrick Garland, it’s unlikely the case would have been brought at all.
Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment, and of the degree to which Mr. McConnell may have altered the course of history with his cynical ploy. After all, President Trump will be in power until 2025 at the latest, but Justice Gorsuch could easily be issuing opinions four decades from now.
by Editorial Board, NY Times | Read more:
