Many have suggested that the outcome of the Affordable Health Care case will depend upon whether the Chief Justice would like to avoid the perception that the Supreme Court is a partisan branch of the Republican Party. No evidence of that desire was on display in yesterday’s resolution of Knox v. SEIU, which should have been a boring labor law case about the kind of notice that needs to be provided when the union has a special dues assessment. Instead of confining themselves to the issue presented by the case, the five conservative justices reached out to address two issues not briefed by the parties.
Justice Alito’s opinion for the Court invited changes in a quarter century of settled law in a way that would significantly benefit Republicans at the expense of Democrats. The law goes like this: Members of bargaining units represented by unions need not join the union, but they must pay their fair share of the collective bargaining expenses, so that they will not be free riders or endanger labor peace. On the other hand, these non-union members of the bargaining unit need not pay for political expenditures by the unions, and they can avoid that by indicating that they want to opt out of these expenses.
Alito reaches out in a lengthy discussion to suggest that the opt-out law does not adequately protect First Amendment rights. Instead, non-union members should have to opt in to pay political expenses before unions receive those funds. Changing the default rules would, of course, have a significant effect on the amount of money unions can spend in politics. Alito’s opinion does not rule on the issue, but you would have to be a moron not to recognize that Alito reached out to invite lawyers to challenge opt-out provisions and that the conservative justices are prepared to change the default by constitutional fiat as soon as they get a case.
But that is not all. Alito argues that the free rider justification for compelling non-union members to pay for collective bargaining expenses is difficult to defend. That would leave only the labor peace justification. I think it would be child’s play for the conservatives to argue that the labor peace argument is too speculative to meet a strict scrutiny test. And no lawyer for an employer will miss this. Alito has thus invited a challenge to the long-standing understanding that those who benefit from collective bargaining should pay for the service.
If unions are deprived of funds for collective bargaining from the people they are charged to represent (and they are required to represent all members of the bargaining unit whether or not they join the union) the unions will be significantly weakened. The Chairman of the Republican National Committee could not have written a better script for the Republican cause.
The conservative majority is brazen enough not to care that those who concurred in the opinion and those who dissented observed that the majority had violated court rules and departed from principles of judicial restraint. And the conservative majority is hypocritical enough that in Citizens United and other decisions, it cast aside long standing rules that were designed to assure that corporate political spending like that of unions came from voluntary contributions. Now, thanks to the conservative majority, the system promises to be stacked in favor of big business in ways not before seen in this country.
The Court has the naked power to achieve this. But it cannot command respect, and it does not deserve it.