Here’s a possible solution to the most commented-upon mystery growing out of the Supreme Court’s argument this week in a case of crucial importance to the future of public employee unions: Why did the normally loquacious Justice Neil M. Gorsuch stay silent? Could the junior justice have caught something from Justice Clarence Thomas, who famously went a decade without asking a single question? Was Justice Gorsuch overcome by the knowledge that with his eight colleagues tied four to four — as revealed by the vote two terms ago in a nearly identical case that was argued but not yet decided by the time of Justice Antonin Scalia’s death — he holds the fate of organized labor in his hands?
No, nothing as tantalizing as that. I think the answer is probably a good deal more pedestrian. The lawyer representing the labor union, David C. Frederick, is Justice Gorsuch’s former law partner. When President Trump nominated Judge Gorsuch to the Supreme Court a year ago, Mr. Frederick published an opinion essay in The Washington Post under the headline: “There Is No Principled Reason to Vote Against Gorsuch.” Identifying himself as “a longtime supporter of Democratic candidates and progressive causes,” Mr. Frederick called Judge Gorsuch “a longtime friend” and described him as “brilliant, diligent, open-minded and thoughtful.” So why would Justice Gorsuch beat up on his old friend when Justices Samuel A. Alito Jr. and Anthony M. Kennedy were doing an enthusiastic job of it?
There. Minor mystery solved. But that leaves unaddressed a major mystery that goes to the heart of the case: how Justices Alito and Kennedy, with all their years of experience, could have permitted their intense dislike of organized labor to strip them of judicious inhibition and drive them to act as advocates and even something very close to bullies.
I wasn’t in the courtroom on Monday when the court heard the case, Janus v. American Federation of State, County and Municipal Employees. I didn’t have to be. The transcript was so hot that it almost jumped out of my hands. Usually as I read an argument transcript I make marginal check marks and underline a few passages. This time, when I picked up the transcript for a second reading, I found the margins full of words like “wow” and “oof.”
Here’s an “oof,” preceded by some necessary context.
The question in the case is whether it violates the First Amendment free-speech rights of employees who choose not to join a union to require them to pay a fee in lieu of full dues. As explained and authorized by the 1977 Supreme Court precedent that the court is now about to overturn, the fee is supposed to spare objecting employees from having to support the union’s political activities, while charging them for so-called chargeable expenses, the union’s cost of conducting the collective bargaining that under federal labor law goes to the benefit of all employees, whether they support the union or not. The theory behind what’s known as the agency fee is that labor peace would be threatened by a workplace full of free-riders who enjoy the benefits bargained for and paid for by others.
The challengers, supported by the Trump administration, maintain that this longstanding distinction between chargeable and nonchargeable expenses is unsupportable because everything a public employee union does is inherently political. Thus, they argue, it violates the First Amendment for the objectors to have to support the union in any way, and therefore the precedent, Abood v. Detroit Board of Education, must be overruled.
In support of this argument, Justices Alito and Kennedy were obsessively focused on unions as political actors that could, in Justice Alito’s words, “push a city to the brink and perhaps over the brink into bankruptcy.” Their goal was to show that public employee unions are political to their very core.
“Do you think that this case affects the political influence of the unions?” Justice Kennedy asked Mr. Frederick. When the lawyer began his answer with a No, Justice Kennedy went on, with evident sarcasm:
“So you’ve — I can try to find a union newsletter which says don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us?”
“That’s not a chargeable expense, Justice Kennedy,” Mr. Frederick began. “We’re talking about —”
Justice Kennedy: “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence. Yes or no?”
Mr. Frederick: “Yes, they will have less political influence.”
“Isn’t that the end of this case?” Justice Kennedy said.
That was my “oof.”
A less experienced Supreme Court advocate might have crumpled. But Mr. Frederick is not only a member of the Supreme Court bar’s elite inner circle — a position once shared by Chief Justice John G. Roberts Jr. — but also the author of a how-to book, “Supreme Court and Appellate Advocacy,” widely regarded as a kind of bible on the subject. In the book, originally published in 2003 and now in a second edition, he describes the “nimbleness in maintaining focus” that’s necessary for “fending off hostile questions that threaten to undermine the case.”
To Justice Kennedy’s “gotcha” question, he replied coolly, “It is not the end of the case, Your Honor, because that is not the question.” To Justice Alito’s dystopian vision of unions pushing cities into bankruptcy, he said, “I would say — and there are briefs on our side that make this very clear — that that particular hypothetical, in fact, is an unfair smearing of the collective bargaining process.” (...)
Trying to understand the unseemly anger radiating from the bench, I came up with two theories. Under one theory, the anti-union justices are simply angry at having to go through this exercise again when they came so close two years ago, with victory snatched from them by Justice Scalia’s death.
In my second theory, these justices are responding to accounts in the press and elsewhere of the intensely political nature of this case, financed by right-wing donors who have spent years looking for an opportunity to cripple organized labor. A brief filed in the case by two Democratic senators, Sheldon Whitehouse of Rhode Island and Richard Blumenthal of Connecticut, is unusually explicit in recounting how “this case is not only bizarre in its procedural history, it is part of a broader special-interest campaign spanning multiple cases that departs from the ordinary course of litigation in multiple ways.”
This remarkable brief reproduces a fund-raising letter from one group, the Freedom Foundation, which proclaims that thanks to this case and specifically to the arrival of Justice Gorsuch, “The Supreme Court is about to hand us the opportunity of a lifetime.” The letter adds that “we’ve been pointing toward this moment for our entire existence” and asks for financial help “to take advantage of the expected 5-4 decision for freedom.” The two senators — one of whom, Senator Blumenthal, was once a Supreme Court law clerk — tell the justices that “these bold predictions, which can only taint the court’s institutional standing, surely must disconcert any member of the public who cares about the judiciary’s impartiality.
No, nothing as tantalizing as that. I think the answer is probably a good deal more pedestrian. The lawyer representing the labor union, David C. Frederick, is Justice Gorsuch’s former law partner. When President Trump nominated Judge Gorsuch to the Supreme Court a year ago, Mr. Frederick published an opinion essay in The Washington Post under the headline: “There Is No Principled Reason to Vote Against Gorsuch.” Identifying himself as “a longtime supporter of Democratic candidates and progressive causes,” Mr. Frederick called Judge Gorsuch “a longtime friend” and described him as “brilliant, diligent, open-minded and thoughtful.” So why would Justice Gorsuch beat up on his old friend when Justices Samuel A. Alito Jr. and Anthony M. Kennedy were doing an enthusiastic job of it?There. Minor mystery solved. But that leaves unaddressed a major mystery that goes to the heart of the case: how Justices Alito and Kennedy, with all their years of experience, could have permitted their intense dislike of organized labor to strip them of judicious inhibition and drive them to act as advocates and even something very close to bullies.
I wasn’t in the courtroom on Monday when the court heard the case, Janus v. American Federation of State, County and Municipal Employees. I didn’t have to be. The transcript was so hot that it almost jumped out of my hands. Usually as I read an argument transcript I make marginal check marks and underline a few passages. This time, when I picked up the transcript for a second reading, I found the margins full of words like “wow” and “oof.”
Here’s an “oof,” preceded by some necessary context.
The question in the case is whether it violates the First Amendment free-speech rights of employees who choose not to join a union to require them to pay a fee in lieu of full dues. As explained and authorized by the 1977 Supreme Court precedent that the court is now about to overturn, the fee is supposed to spare objecting employees from having to support the union’s political activities, while charging them for so-called chargeable expenses, the union’s cost of conducting the collective bargaining that under federal labor law goes to the benefit of all employees, whether they support the union or not. The theory behind what’s known as the agency fee is that labor peace would be threatened by a workplace full of free-riders who enjoy the benefits bargained for and paid for by others.
The challengers, supported by the Trump administration, maintain that this longstanding distinction between chargeable and nonchargeable expenses is unsupportable because everything a public employee union does is inherently political. Thus, they argue, it violates the First Amendment for the objectors to have to support the union in any way, and therefore the precedent, Abood v. Detroit Board of Education, must be overruled.
In support of this argument, Justices Alito and Kennedy were obsessively focused on unions as political actors that could, in Justice Alito’s words, “push a city to the brink and perhaps over the brink into bankruptcy.” Their goal was to show that public employee unions are political to their very core.
“Do you think that this case affects the political influence of the unions?” Justice Kennedy asked Mr. Frederick. When the lawyer began his answer with a No, Justice Kennedy went on, with evident sarcasm:
“So you’ve — I can try to find a union newsletter which says don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us?”
“That’s not a chargeable expense, Justice Kennedy,” Mr. Frederick began. “We’re talking about —”
Justice Kennedy: “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence. Yes or no?”
Mr. Frederick: “Yes, they will have less political influence.”
“Isn’t that the end of this case?” Justice Kennedy said.
That was my “oof.”
A less experienced Supreme Court advocate might have crumpled. But Mr. Frederick is not only a member of the Supreme Court bar’s elite inner circle — a position once shared by Chief Justice John G. Roberts Jr. — but also the author of a how-to book, “Supreme Court and Appellate Advocacy,” widely regarded as a kind of bible on the subject. In the book, originally published in 2003 and now in a second edition, he describes the “nimbleness in maintaining focus” that’s necessary for “fending off hostile questions that threaten to undermine the case.”
To Justice Kennedy’s “gotcha” question, he replied coolly, “It is not the end of the case, Your Honor, because that is not the question.” To Justice Alito’s dystopian vision of unions pushing cities into bankruptcy, he said, “I would say — and there are briefs on our side that make this very clear — that that particular hypothetical, in fact, is an unfair smearing of the collective bargaining process.” (...)
Trying to understand the unseemly anger radiating from the bench, I came up with two theories. Under one theory, the anti-union justices are simply angry at having to go through this exercise again when they came so close two years ago, with victory snatched from them by Justice Scalia’s death.
In my second theory, these justices are responding to accounts in the press and elsewhere of the intensely political nature of this case, financed by right-wing donors who have spent years looking for an opportunity to cripple organized labor. A brief filed in the case by two Democratic senators, Sheldon Whitehouse of Rhode Island and Richard Blumenthal of Connecticut, is unusually explicit in recounting how “this case is not only bizarre in its procedural history, it is part of a broader special-interest campaign spanning multiple cases that departs from the ordinary course of litigation in multiple ways.”
This remarkable brief reproduces a fund-raising letter from one group, the Freedom Foundation, which proclaims that thanks to this case and specifically to the arrival of Justice Gorsuch, “The Supreme Court is about to hand us the opportunity of a lifetime.” The letter adds that “we’ve been pointing toward this moment for our entire existence” and asks for financial help “to take advantage of the expected 5-4 decision for freedom.” The two senators — one of whom, Senator Blumenthal, was once a Supreme Court law clerk — tell the justices that “these bold predictions, which can only taint the court’s institutional standing, surely must disconcert any member of the public who cares about the judiciary’s impartiality.
by Linda Greenhouse, NY Times | Read more:
Image: Andrea Bruce for The New York Times
[ed. The fix appears to be in, a death knell for unions.]
