The Supreme Court Prepares To Crush Public Employee Unions

Today’s NYTimes has an article examining the case of Janus v. AFSCME, to be argued before the Supreme Court next Monday. “A Supreme Court Showdown Could Shrink Unions’ Power,”  https://www.nytimes.com/2018/02/22/us/politics/supreme-court-unions.html.  This post offers a perspective on how the very conservative five-member majority uses a case like this to reach its ideological goals, in the process corrupting the First Amendment and weakening the Court's legitimacy.

The petitioner, supported by the U.S. government as an amicus, asks the Court to overturn precedent from 1977 and prohibit public employee unions from requiring non-members, whose interests unions represent along with members when bargaining with government, from paying fees covering the cost of representation. The case rests on the Free Speech clause of the First Amendment; the petitioner claims that by forcing him to pay the union to represent him, he is compelled to support union bargaining positions with which he does not agree. As the article notes, a favorable ruling will seriously erode if not destroy many public employee unions. A similar 2016 case led to a 4-4 deadlock, because Justice Scalia died before the decision was issued. With Justice Gorsuch filling that seat, a ruling for the petitioner seems likely.

The First Amendment protects from government interference not only the right of free speech but also the rights to assemble and petition the government for redress of grievances. Both kinds of rights will be affected by this case, not just speech. Speech can be exercised by an individual, as in this case, or a group. But assembly is by definition a collective behavior; it includes activities like creating unions that represent government employees. Employees have organized under legislation expressly authorizing them to bargain with government employers. Yet the conservative majority seems poised to undermine the rights of assembly and petition by interpreting the free speech clause to allow the voice of a single dissenter to undermine or destroy the collective voice of organized public employees, by preventing unions from recovering the costs of collective representation from all its beneficiaries, not just union members. Allowing those employees who choose not to be union members to avoid paying representation fees in lieu of membership dues reduces collective bargaining effectiveness by starving the union financially. Reduced effectiveness in turn erodes union membership, creating a potential death spiral. Where state governments have set out to destroy public employee unions, such as Wisconsin under Gov. Scott Walker, their most effective tool has been laws prohibiting collection of these representation fees. The Janus case aims at the same result for every state, by making that prohibition a constitutional barrier.

This is how the Court’s majority applies its far-right ideology, which elevates the interests of the individual over those of the community, not by protecting her against the tyranny of the majority㆒traditionally the purpose of the Bill of Rights㆒but by disabling the majority from protecting its interests by allowing her to veto collective advocacy. In the opinion it will issue overturning its 1977 precedent, the majority may deny or just ignore the consequence that public employee unions will be weakened to the point of impotence. But these justices are not indifferent to the fate of such unions. They actively want to destroy them. That outcome is the unspoken objective that drives, but is unlikely to appear on the face of, their judgment, because bending legal reasoning to achieve a policy result customarily has been regarded as bad jurisprudence which erodes the legitimacy of the judicial branch.

This use of one First Amendment clause to weaken another in pursuit of a political agenda echoes what the court’s recent majority has done with another part of the amendment, the Free Exercise clause. In Hobby Lobby and similar cases, the court carved out exemptions from laws of general applicability in order to privilege favored religions over all other societal interests.* Employers, even in corporate form rather than as individual proprietors, can avoid the Affordable Care Act's otherwise universal obligation to provide health insurance that covers the costs of contraceptive devices and medications, if they object on religious grounds. This has undermined the Establishment clause because the state now favors certain religions over others (including adherence to no religion) by exempting only their adherents from a law applied to everyone else. As the Court said in a 1982 case, United States v. Lee, "one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.'" The Court previously applied the principle that "the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." (from Justice Ginsberg's dissent in Hobby Lobby) Not under the current majority.

 *The opinion in Hobby Lobby states that it is not deciding the case based on the petitioner's Free Exercise claim but instead on the language of the 1993 Religious Freedom Restoration Act (RFRA). But RFRA itself derives its authority from the Free Exercise clause.