A Sobering Reminder to Unions on the Critical Importance of Supreme Court Appointees

President Trump is looking for a surefire conservative for the Supreme Court. For all the escalating rancor, this round to replace the late Justice Antonin Scalia could be the prelude to a more consequential battle. The possibility of a second Supreme Court vacancy in the near future is subtly affecting the strategy of the Republican Trump team in the final stages of selecting a candidate and of Democratic opponents girding for what could be years of political turmoil surrounding the composition of America’s highest court.

Scalia, who died last February, was a rigid conservative on social issues so Trump’s replacement would likely be a wash. But a Trump successor to either of the two eldest justices — liberal Ruth Bader Ginsburg, who will turn 84 in March, or centrist-conservative Anthony Kennedy, turning 81 in July — could truly transform the law in America.

How the Fate of Unions Fell Into The Hands of a Single Man

In Commonwealth v. Hunt, (1842), an American legal case in which the Massachusetts Supreme Court ruled that the common-law doctrine of criminal conspiracy did not apply to labor unions. Until then, workers’ attempts to establish closed shops had been subject to prosecution. Chief Justice Lemuel Shaw asserted, however, that trade unions were legal and that they had the right to strike or take other steps of peaceful coercion to raise wages and ban nonunion workers.

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The case stemmed from a demand by the Boston Journeymen Bootmakers’ Society that an employer fire one of its members who had disobeyed the society’s rules. The employer, fearing a strike, complied, but the dismissed employee complained to the district attorney, who then drew an indictment charging the society with conspiracy. The Boston Municipal Court found the union guilty.

Justice Shaw, hearing the case on appeal, altered the traditional criteria for conspiracy by holding that the mere act of combining for some purpose was not illegal. Only those combinations intended “to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means” could be prosecuted.

Shaw, in effect, legalized the American labor union movement by this decision.

Let’s hope that the inevitable Democratic show of force on the first nomination serves as a warning to Trump not to put up an uncompromising conservative for a more consequential opening.

YOUR TURN

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Major Win for Unions in a Supreme Court Split

Unions Win Fee Victory as Supreme Court Ties 4-4

by Adam Liptak, New York Times

A case that seemed poised to deal a major blow to public unions ended in a 4-4 tie on Tuesday at the Supreme Court, effectively delivering a big victory to the unions.

When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment.

But the death of Justice Antonin Scalia in February changed the balance of power in the case, which was brought by California public schoolteachers who chose not to join unions and objected to paying for the unions’ collective bargaining activities on their behalf.

A ruling in the teachers’ favor would have affected millions of government workers and weakened public-sector unions, which stood to lose fees from both workers who objected to the positions the unions take and those who simply chose not to join while benefiting from the unions’ efforts on their behalf.

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Under California law, public employees who choose not to join unions must pay a “fair share service fee,” also known as an “agency fee,” typically equivalent to members’ dues. The fees, the law says, are meant to pay for collective bargaining activities, including “the cost of lobbying activities.” More than 20 states have similar laws.

Government workers who are not members of unions have long been able to obtain refunds for the political activities of unions like campaign spending. The case, Friedrichs v. California Teachers Association, No. 14-915, asked whether such workers must continue to pay for any union activities, including negotiating for better wages and benefits. A majority of the justices seemed inclined to say no.

Relying on a 1977 Supreme Court precedent, the appeals court in the case upheld the requirement that the objecting teachers pay fees. Tuesday’s announcement, saying only that “the judgment is affirmed by an equally divided court,” affirmed that ruling and set no new precedent.

View the Complete Details on The California Teachers Association Fact Sheet >>

Have Democrats Rediscovered Unions Too Late?

In early 2016, a remarkable thing happened. Mainstream liberal opinion makers suddenly decided that labor unions do good things, and that they are worthy of the public’s support. Last February, the Editorial Board of The New York Times sadly described America as “a nation where the long decline in unions has led to a pervasive slump in wages,” and they worried about the ongoing struggle between “pro- and anti-union forces,” noting that “Republicans’ support for anti-union legislation is at odds with their professed commitments to helping the middle class.”

The previous week, the Times op-ed contributor Nicholas Kristof had operatically outed himself as a born-again supporter of labor unions. Saying that, “[l]ike many Americans, I’ve been wary of labor unions,” Kristof first repeated some carefully distorted anti-union anecdotes, but then he announced: “I was wrong. . . . [A]s unions wane in American life, it’s also increasingly clear that they were doing a lot of good in sustaining middle class life.”

This new theme has now become prominent in the Times and elsewhere, with (among many examples) another Editorial Board piece in October extolling the role of union power in raising the wages of automotive workers and in pushing for a higher minimum wage, as well as occasional guest op-eds making similar points. Suddenly, it is acceptable for mainstream liberals to say that they support unions.

The Question of Unions’ Role in American Life

The question of unions’ role in American life found its way into the Supreme Court earlier this month, in the case of Friedrichs v. California Teachers Association, in which the justices will decide whether public-employee labor unions can continue to collect dues from non-members to help pay for the union’s efforts that raise pay and benefits for members and non-members alike, while leaving in place the prohibition on using non-members’ money to support political activities. The current system prevents the classic “free rider” problem, in which people will sensibly choose not to pay for something when they know that they will be able to benefit from it in any event.

The oral argument in the case was rather astonishing. Chief Justice Roberts blithely offered the unsupported claim that the financial costs to unions resulting from losing the case would be “really insignificant,” evidently believing that people will pay for things that they like, even when they are not required to do so.

But the Chief Justice’s rationalizations were the least of the problem. Supreme Court reporter Linda Greenhouse, calling a comment by Justice Kennedy at oral argument “as unconstrained and revealing a rant as I’ve heard from the Supreme Court bench,” noted that Justices Kennedy and Scalia are now arguing that there simply is no distinction between political and non-political activities by a public-sector union. Justice Kennedy even described as “almost axiomatic” the idea that government agencies deal with matters of public concern, so that if a non-member thinks that the union should not be taking one position or another in negotiations, that position is per se political, with the union “making these teachers ‘compelled riders’ for issues on which they strongly disagree.”

The justices in the majority thus apparently believe that there can be no real distinction between a union’s workplace activities and its political activities. One might impertinently suggest that this would also be true of private-sector unions, many of whose members would also surely be willing to say that they disagree with their representatives’ activities. But whether the Roberts majority ultimately decides to selectively look past the public/private distinction in this area is as yet unknown.

In any event, the outcome of the Friedrichs case seems certain. And with union membership having dropped to ten percent of American workers, and with the vast majority of those who do belong to unions being in public-sector jobs, this could be a further blow to the ability of unions to do the good things that the editors of The New York Times and other liberals now proudly support.

If this outcome is not the death blow to unions, therefore, it will certainly be a major event. And if mainstream liberals are worried about this case, they need to think seriously about how we reached the point where unions are in such a precarious state.

The New Political Case for Unions

At the top of the Democratic Party, there is continued discomfort with pro-union activity. When Wisconsin Governor Scott Walker aggressively attacked his state’s public-employee unions, as part of a broader national strategy to weaken labor unions even further, President Obama was notably absent from that debate. Wisconsin’s progressive activists were disappointed but not surprised, because Obama had been tepid at best in his support of labor’s interests.

Even so, people who used to disparage or discount the importance of unions are now apparently seeing the light. It is easy to see why. With inequality having become a matter of concern even among some Republicans, we can no longer ignore the clear connection between declining unionization and the expanding gap between the wealthy and everyone else. These recent decades in which Democrats have been pulling away from unions, after all, are exactly when we have seen workers’ incomes essentially stagnate even while workers’ productivity has multiplied impressively.

More generally, the decline of the middle class is unambiguously related to the decline of unions, simply because it is labor unions that are best able to preserve mechanisms that allow workers to share some of the gains of a growing economy. Most obviously, it is unions, as noted above, that have led the fight to increase the minimum wage across the country.

Neil H. Buchanan, an economist and legal scholar, a Professor of Law at George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute asks and answers;

“Is still time to prevent further declines in the role that unions play in America? And can the decline of unions be reversed?

“Liberals who once recoiled from unions have suddenly seen that unions must play an important role going forward. If it is too late to stop the anti-union momentum in this country, however, the killing of the labor movement – and of widely shared American prosperity – will have been aided and abetted by far too many people who should have known better.”

Your Turn

Is still time to prevent further declines in the role that unions play in America? And can the decline of unions be reversed? Sound off in Comments, on the Union Built PC Facebook Page in the #UnionStrong Facebook Group or on Twitter. And don’t forget to sign up for our monthly eNewsletter for articles like this delivered straight to your inbox.