Opinon: Using the courts to destroy unions


WASHINGTON — Many conservatives believe in the untrammeled rights of employers. Consequently, they despise unions. They also can’t stand it that organized labor usually backs Democrats and they especially detest public employee unions which, by their very nature, advocate for government.

For decades, these same conservatives criticized the politicization of the courts, accusing liberals of “inventing rights,” “making new law” and indulging in “judicial activism.”

And one more thing: Conservatives of late have charged that liberals refuse to acknowledge the importance of allowing revered and useful social institutions to thrive and maintain their organizational integrity. So, for example, the right insists that religiously linked organizations opposed to contraception must under no circumstances be required to cover birth control in their health plans.

This bundle of contradictions is on open display in the case of Janus v. American Federation of State, County and Municipal Employees. Argued this week before the Supreme Court, the suit is an effort to overturn 41 years of settled precedent for the purpose of crippling the American labor movement.

The claimant, Mark Janus, an Illinois state social worker, argues that his First Amendment liberties are violated because he has to pay an “agency fee” to the union even though he is not a member and might disagree with its politics.

On the merits, nothing about the agency fee deprives Janus of his right as a citizen to speak out as he wishes. And the idea behind collective bargaining is that when a majority of employees decide to join a union, its bargaining typically produces higher pay and benefits for the entire bargaining unit. Agency fees pay for this collective effort.

This is why conservative money and influence came together to bring this case. And, as University of Baltimore law professor Garrett Epps observed in The Atlantic, the litigation strategy of “the powerful anti-union advocacy network” was to avoid creating a factual record on the agency-fee issue in the lower courts.

Instead, the anti-labor consortium sought to force the case up to the Supreme Court at a moment when it hoped a conservative majority would reflexively take its side.

To know how political this case is, consider Justice Anthony Kennedy’s polemical response to the solicitor general of Illinois, which sided with the union. Kennedy seemed incredulous that the state could have a stable partnership with a union that was fighting for “a greater size workforce, against privatization, against merit promotion … for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes.”

Kennedy asked a pro-union lawyer: “If you do not prevail in this case, the unions will have less political influence; yes or no?” The answer was yes, a victory for Janus would curb labor’s political power. To which Kennedy candidly commented: “Isn’t that the end of this case?”

But in making a point of his own, Kennedy also underscored that a labor setback would clearly benefit the Republican Party.

The very slim hope of dodging a blatantly partisan decision rests with Chief Justice John Roberts.

A 5-to-4 anti-labor ruling would remind us why Senate Republicans refused even to consider Judge Merrick Garland’s nomination for the seat now occupied by Justice Neil Gorsuch. It would reveal a truly activist court mired in politics — and a long way from Roberts’ vision of judges who only call balls and strikes.

Writes for The Washington Post.



Reader Comments ...


Next Up in Opinion

Opinion: Singapore summit was a historic snooker

The headline writers adore the word “historic.” It was ubiquitous in reporting on the April meeting between Kim Jong Un and Moon Jae-in. Kim shook Moon’s hand and then guided him over the military demarcation line to step onto North Korean territory. This prompted swoons. If that was a bona fide gesture of peaceful intent, time will...
Opinion: A quisling and his enablers

This is not a column about whether Donald Trump is a quisling — a politician who serves the interests of foreign masters at his own country’s expense. Any reasonable doubts about that reality were put to rest by the events of the past few days, when he defended Russia while attacking our closest allies. We don’t know Trump’s...
READERS WRITE: JUNE 17

Liberals only see one type of lack of diversity Uh oh! Call the PC police on the South Fulton police! The AJC story (” ‘Black Girl Magic’ rules in South Fulton courts,” June 13, Metro) extols the positive impact of having zero racial and gender diversity in the leadership of South Fulton’s police department and court system...
Opinion: High school learns censorship doesn’t work

Here’s an axiomatic truth: If you want to make sure people see or hear something, ban people from seeing or hearing something. That predates the internet, as any former teenager who ever hid under the covers listening to “Louie Louie” with the volume down can surely attest. We are talking about a long time ago in a galaxy far, far...
Opinion: ERA began as a farce but has ended in tragedy

Karl Marx was no more mistaken than usual when he said that historic people and events appear twice, first as tragedy, then as farce. Today’s advocates of a musty fragment of the 1970s, the Equal Rights Amendment, are demonstrating that something that begins as farce can reappear as tragedy, because abuse of the Constitution is tragic. With Illinois...
More Stories