Reactionary Judicial Activism, Unions, And The Walking Dead

In the recently decided Harris v. Quinn, Justice Alito and the conservative majority continued the Court’s assault (which began two years ago in Knox v. SEIU) on public employee unions, which just happens (!) to coincide with a larger assault on those unions by Republicans controlling state governments.

This is activism pure and simple. And it used to be that, in the judicial realm, conservatives were dead set against it (remember “judicial restraint”?). But that was then and this is the age of reactionary judicial activism, an activism increasingly blessed by conservatives-turned-radicals like George Will, who in January of this year was cheerleading for conservative judges to be “less deferential to legislatures” and who wrote:

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.

In Harris, the conservatives took Will’s advice and took it upon themselves to basically overrule the democratic process—legislators in the state of Illinois in this case—and have given, in the words of Harvard law professor Laurence Tribe“a constitutional underpinning to the anti-union ‘right to work’ stance.” Tribe says,

Harris is the latest chapter in the troubling story of the Roberts court indulging attenuated constitutional arguments against economic regulation.

Tribe concludes his piece on Monday’s anti-union decision this way:

Harris, despite its arguably narrow holding and apparent restraint, is thus part of a dangerous trend of veiling deregulatory economics in constitutional law. The Roberts court seems to be forgetting one of the principal lessons of constitutionalism since the New Deal: Economic policy should be made by legislatures, not courts. Harris is the Roberts court’s most recent retreat from that long-standing and wise consensus. It would do well to retreat no further.

Retreat no further? Come on. This is all about retreating. All the way back to the 19th century.

Back in 1977, the Court, not then openly hostile to the idea of unions, held in Abood v. Detroit Board of Education that private sector employees and public sector employees are essentially the same and that public employees represented by unions, even if they were not members, could be required to pay fees for the collective bargaining services they received, even if they objected to the political activities of the union. The Court essentially stopped in its tracks the idea that there could be freeloading public sector workers—those who took the benefits unions brought them but who didn’t want to pay for those benefits. Without such protection from freeloaders, unions—who are required by law to bargain for both members and non-members—could be in deep, deep trouble, especially if freeloading became the norm.

Monday’s decision in Harris V. Quinn, building on the anti-Abood stance Alito adopted in Knox v. SEIU, has guaranteed that public sector unions have something to worry about—if the composition of the Court is not changed before Alito can come up with enough votes to completely overrule the Abood decision, since right now it appears there is some teensy-weensy respect still left for stare decisis.  (Alito may soon have his chance in a case before the Ninth Circuit right now, Friedrichs v. CTA, in which a group of California teachers are seeking a reversal of Abood.)

Here is the way labor and civil rights attorney Moshe Marvit opened his piece for The New Republic:

The Supreme Court on Monday issued a wide-ranging opinion that will heavily impact the future of labor in America. The majority opinion in Harris v. Quinn held that home healthcare workers in Illinois and every other state that has a similar program are only “partial” or “quasi” public employeesas opposed to “full-fledged public employees” and thus don’t have to pay fees for labor representation. While the majority, led by Justice Samuel Alito, did not go so far as to fully gut the ability of public sector unions to finance their existence, the decision in the case was by no means a moderate one. Harris v. Quinn has set the stage for the eventual overruling of Abood; it has confused and perverted the concept of free-riders; and it has created an impossible standard for unions to meet.

A right-wing law professor sympathetic to the freeloaders, John Eastman, sees it pretty much the same:

While not quite the stake in the heart that would kill public employee unions altogether, today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead.

Yes, and soon the middle class, the beneficiary of private and public sector union activity, will also be part of the walking dead. (Some think the death, if not the walking, has already come.)

After Monday’s terrible Court decisions, HuffPo featured this graphic:

liberals crushed in court

Take a look at those faces. When I saw that graphic the first thing I thought about was Hillary Clinton. She could win two terms as president. She could change that headline, change those faces, at least those who are getting old (Scalia and Kennedy are 78 this year). For all her faults, for all her snuggling up to Wall Street wallets, liberals who don’t much like her would do well to think about the graphic above (and about the fact that Ginsburg is 81 and Breyer is 76). Those five men, if they haven’t already, may end up doing more lasting damage to the country than even George W. Bush’s decision to invade and occupy Iraq.

And if Hillary Clinton can do anything to stop them, I’m with her all the way.

 

2 Comments

  1. ansonburlingame

     /  July 4, 2014

    It is the morining of July 4th and I am about to go off to a neighborhood parade and picnic. So this is short, for now, but more to follow perhaps, later.

    Someone wrote above about “deregulatory economics in constitutional law”. By and large and absent all kinds of “interpretation” of the Constitution, it does not regulate much economically and should not. Sure such things as child labor laws, allowing unions to represent people that WANT to be represented, etc. are all well and good But the general idea of a government REGULATED economy is the last thing I would hope to see in America. That end of the spectrum is called communism the last time I checked.

    So where is the middle ground, the right amount of government control, or attempted control, of economic forces. We will argue until the cows come home on that point I suppose.

    The current outrage against SCOTUS from the left these days echo the same outrage from the right against the Warren Court. It takes time, a long time, to establish a “trend” on SCOTUS and that was clearly the intention of the Founders. I of course would much prefer unanimous opinions from SCOTUS and avoid all the political warfare therein but that is just a pipe dream today in America I suppose.

    Be careful what you wish (or pray) for in terms of “stacking the court”.

    And Happy 4th to all as well. Like it or not we still live in the best country ever created by human beings, in my view.

    Anson

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    • “Happy 4th to all as well. Like it or not we still live in the best country ever created by human beings, in my view.”

      How can that be after 5 1/2 years of the country-killer in the White’s House?

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