I. Son of Bush v. Gore
Mitch McConnell is a big winner today. His refusal to let the Senate consider Barack Obama’s nomination of Merrick Garland for the Supreme Court seat opened by Antonin Scalia’s death led to Neil Gorsuch’s accession to Scalia’s seat, which in turn led to the spate of reactionary decisions the Court has since delivered. But no decision has mattered more to McConnell than today’s ruling in Janus v. AFSCME, for this decision has a direct and immediate effect on the partisan balance of power.
By stripping public-sector unions of the right to collect the fees from non-members they are obligated to represent in bargaining and grievance procedures, the five Republicans on the high court have effectively compelled the unions, which constitute some of the largest and most effective election-time campaigners for progressive causes and candidates, to lose the resources that enable them to do what they do.
And what is it that the major public-employee unions actually do during election season? Besides rallying their own members to support candidates who support adequate public services, more broadly shared prosperity, and human and civil rights, they also provide the foot-soldiers who focus on helping minority voters get to the polls. They are, that is, a major arm of the Democrats’ mobilization operation. Now that arm has been measurably shortened. That’s why Mitch McConnell is having a good day.
Why, one might ask, should non-members whom the union represents have to pay for such electoral activities? In fact, under the past four decades of established law that the five Court Republicans overturned today, they didn’t have to pay for these activities. In 1977, the Court ruled in Abood v. Detroit that the non-members in unionized workplaces didn’t have to pay for the union’s political activities, but did need to pay an agency fee to cover the union’s outlays on bargaining and representation, from which non-members as well as members directly benefit. That was the precedent—which, as Justice Elena Kagan made clear in her dissent, had given rise to countless other court decisions comporting with Abood, and which set the standard that 22 states have opted to follow—that the Court overturned today.
(Not that the Republican Five dismissed precedent altogether. In his majority opinion, Justice Samuel Alito repeatedly cited two previous rulings: the Knox decision from 2012, in which the five Republicans on the Court actually requested that someone bring a challenge to Abood; and the Harris decision from 2014, in which the Court ruled that home-care workers paid by the state weren’t entirely state employees, and thus didn’t have to pay agency fees. Of course, both those decisions were written by Alito. In his search for precedents, he was compelled to rely largely on himself.)
For the Republicans’ political apparat, today’s decision sounds as a starting gun for their new offensive against unions. The Koch brothers' operation, among others, has already put in place a legion of canvassers who will now knock on union members’ doors and tell them that they can still be the beneficiaries of the contracts the union gets for them without having to pay any dues. Why are the canvassers already standing in the on-deck circle? Why the unseemly haste? Because the midterms loom, and the more union members the Kochs can persuade to stop paying for the services they receive, the less resources the unions will have. (For their part, anticipating this decision, many of the affected unions have had thousands of activist members reach out to their fellow members to remind them of what the unions have won and will win for them.)
Just as in Bush v. Gore when the five Republicans on the Court chose a fellow Republican to become president, so in Janus the five Republicans on the Court have decided to disarm—as much as they could—a major part of the Democrats’ political arsenal, not for one election, but for years ahead. And in this, Janus is just the latest in a string of decisions by Justices Roberts, Thomas, Kennedy, Alito, and (first) Scalia and (then) Gorsuch to deliberately bolster Republicans’ electoral prospects. In recent weeks, the Five Republicans have in a series of cases declined to overturn Republican gerrymanders—in one case, telling litigants they should trust the Republican-dominated Texas Legislature to craft a fair redistricting. In the Shelby decision, which had its fifth anniversary this week, they ruled that the Voting Rights Act could no longer be enforced in many states where the institutional and political legacy of white racism still diminished minority voting. The legacy of Bush v. Gore lives on: The right-wing justices are still doing their damnedest to help Republicans at the polls.
II. Grandson of Lochner
I don’t mean to suggest by the above that the five right-wing justices are solely concerned with bolstering Republicans’ prospects.
They genuinely hate unions, too.
In that, they are reverting to the customs and mores of the fiercely anti-worker courts of the pre-New Deal era. The Court’s mindset in that era was epitomized by its decision in the 1905 Lochner case, in which the Court struck down a New York state law that limited the hours that bakers could be compelled to work to ten hours a day and 60 hours a week, because it violated the rights of employers. It was during this period that Justice Oliver Wendell Holmes Jr., writing in dissent, noted that his colleagues had taken it upon themselves to enact the laissez-faire and social Darwinist doctrines of Herbert Spencer, and that this mission, while it might be appropriate for legislators or an academic like Spencer, had no basis in constitutional law.
Today, the Court’s conservatives seem bent on imposing an era of Neo-Lochnerism on a nation that plainly doesn’t want it. A few weeks ago, the Gang of Five ruled that employers could compel their employees—as a condition of employment—to pursue their grievances only in private arbitration proceedings that employers invariably dominate. Their workers could not take them to court, no matter how egregious was the conduct they were alleging.
This pro-employer, anti-employee bias is a defining aspect of the majority on the Roberts court. In Citizens United, it reversed nearly a century of law that had prohibited corporations from making campaign contributions, enhancing corporations’ capacity to influence elections just as Janus diminishes unions’ capacity to do the same.
Don’t think the Court is now done with its war on unions. Section 14-b of the Taft-Hartley Act gave states the right to enact right-to-work (i.e., you can get the benefits of having a union in your workplace without having to pay for it) laws for private-sector unions, but Alito and Company have just enacted a right-to-work law for all public-sector employees, no matter what state they’re in. Who’s to say that Alito doesn’t think Taft-Hartley didn’t go far enough in weakening unions, and that if Congress doesn’t make right-to-work the law of the land, he and his colleagues will make a run at it?
Ironically, the Republican justices’ and Republican politicos’ escalation of their war on unions comes at a time when unions are more popular than they’ve been in many years. Both the Pew and Gallup Polls show that 60 percent of the public have a favorable view of unions, a figure that rises to 75 percent among millennials. (In universities and at media outlets, millennials have been forming unions at a near-record clip.) The public support given to the recent wave of teachers’ strikes in red states attests to the unions’ growing ability to advocate for what most Americans see as the common good—adequate funding for education, decent public services, fair pay for a day’s work.
Unions need to build on that support and to counter the Right’s judicial and legislative attack on them. They won’t be able to increase their resources, but they will be able to increase their militancy. The teachers’ strikes took place, for the most part, in states where their unions lacked formal collective-bargaining rights, but mobilized so much public backing that Republican elected officials were compelled to concede to some of the strikers’ demands. To build on that backing, unions will need to pursue what has come to be called “bargaining for the common good”—posing demands that benefit not just the workers but a broader public, much as the teachers did in striking not just for better pay or benefits but for more funding for schools.
As to the Court itself, the course of resistance runs through the Democratic Caucus in the Senate. With Justice Kennedy retiring, Democrats should insist the Senate follow the procedure that McConnell laid down in refusing to consider President Obama's nomination of Merrick Garland: No confirmation of a Supreme Court justice should be held in an election year. Indeed, should the Democrats retake the Senate in November’s elections, there’s no reason why they should confirm any of Trump’s future judicial nominations. And if they can’t assemble a majority to do that—if a Manchin or a Heitkamp opts to support Trump’s choices—they can always refuse to bring the matter to the floor (that would be Chuck Schumer’s call) or even to hold hearings (that would be up to the Democratic chair of the Judiciary Committee, who would likely be Dianne Feinstein—and that would be a good issue for Kevin de León, the progressive Democrat running against her in November, to pressure her on).
After all, that’s exactly what McConnell did when Obama sent Garland’s nomination to the Senate—held no hearings, didn’t bring it to the floor. McConnell is not known for the power of his arguments, but his objections to the Democrats following a precedent he himself set would, even by his own standards, be weak.