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Stephen Gottlieb: The Anti-Union Court

The Court decided yesterday in Harris v. Quinn that at least some of the employees who work under a collective bargaining agreement don't have to share in the costs of negotiating that agreement. The Court says it violated their First Amendment rights. How many unions and employees it will apply to is still unclear but this is not the first move the Roberts Court has made in that direction.[i] Sometimes the patterns matter much more than the individual decisions, whether good or bad.

The Court is well aware that giving people covered by collective bargaining agreements the right not to pay their share – uncoupling the service from the price – will tempt everyone to be a free loader, leave unions passing the hat instead of charging for what they do, and therefore undermine the unions’ financial base.

There are lots of things I have to pay for that conflict with my beliefs and that result in statements, speeches, advertising and public positions in political campaigns with which I strongly disagree. I would certainly like to be able to opt out of that portion of my taxes that supports what certain members of the Roberts court have to say. I would also like to be able to opt out of that portion of my payments for various purchases that get spent on positions and candidates with which I disagree. But that turns out to be very hard in this world.

Typically Congress has been even-handed in treating unions and corporations at least since the Taft-Hartley Act of 1947.[ii] Statutory restrictions on corporate and union contributions and expenditures in political campaigns have applied to both. But the Court's understanding of the First Amendment is very one sided. It has freed corporate treasuries for political activities in cases like Citizens United[iii] while cutting the financial base out from under the unions. The Court has been underscoring its preference for corporations with a long series of decisions that favor corporations over employees, consumers and investors, protecting the corporations from all manner of litigation.[iv] One can’t help recalling Bush v. Gore[v] which handed the election of 2000 to George Bush over Al Gore because it strongly suggests the partisan political animus of the decision making of the majority on the Court, all of whom were appointed by Republican presidents. It’s hard not to see a connection between the pattern of the Court’s decisions and the expectation that most unions will support Democrats and most corporations will support Republicans. It’s hard to doubt that the majority expects that corporations would skew our politics away from what they doubtless think are the grubby greedy demands of the nobodies over the cultured self-interest of the somebodies.

The Court’s partisanship is not merely that it sees issues through Republican eyes but that it has been attacking the equality of the vote in its decisions. Anti-union decisions like Harris v. Quinn and pro-corporate decisions like Citizens United do that by changing political financing. Bush v. Gore actually stopped the count of the votes rather than take a chance on the voters. And the Court's emasculation of the Voting Rights Act enables states to play with the availability of the ballot to favor conservative Republicans and keep African Americans and other Democrats away the polls.[vi] The Court's refusal to address gerrymandering in the LULAC decision has foisted minority government on us all.[vii] Truly this Court does not believe in democracy, self-government or in the America that would run them.

What will be at stake in the coming senatorial and presidential elections is not just the future of the Court but the future of the country.

[i] Knox v. SEIU, Local 1000, 132 S. Ct. 2277 (U.S. 2012); Davenport v. Wash. Educ. Ass'n, 551 U.S. 177 (U.S. 2007).

[ii] Formally known as the Labor Management Relations Act of 1947.

[iii] Citizens United v. FEC, 558 U.S. 310 (U.S. 2010).

[iv] I have collected some of those decisions in Does What We Know About the Life Cycle Of Democracy Fit Constitutional Law? 61 Rutgers L. Rev. 595, 607 (2009) and have expanded the list substantially for a book currently in draft.

[v] Bush v. Gore, 531 U.S. 98 (U.S. 2000).

[vi] Shelby County v. Holder, 133 S. Ct. 2612 (U.S. 2013).

[vii] League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399 (2006).

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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