Messenger has a point. It is true that the rules dictate that when a union is created it has to abide by certain regulations, and it is reasonable, too, for the state to balance out the rights and responsibilities that it has imposed on those charged with doing the negotiating. But while this might satisfy the question of why the state can regulate unions the way it does, it makes no difference to those who want nothing to do with a union at all, nor does it answer the First Amendment claims. The simple fact remains: If the majority of a public employee’s co-workers decide to unionize, he is all of a sudden compelled by the state to contribute to assemblies that he may abhor and, too, to accept representation before the government — not just any ordinary employer — from people whom he does not wish to speak for him. (The union accepts this, claiming that it is necessary to act as intermediary between the health-care worker and the state.) Is this unconstitutional?
Messenger thinks so. Yesterday, a bemused Justice Kagan asked him to clarify his position:
Justice Kagan: Is it fair to say that what you’re suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question . . . because, in fact, a right-to-work law is constitutionally compelled?
Mr. Messenger: . . . Yes, our position is, is that in the public sector, when government is involved, compulsory fees are illegal under the First Amendment.
The Left’s fears that what seemed initially to be a minor procedural case might well spin out of control are by no means unfounded. Kent Greenfield, a professor at Boston College Law School, wrote
nervously this week that “some Court watchers are saying that Harris could be the sleeper case of the year.” He is right: That is precisely what it could be. Indeed, as Lyle Denniston of SCOTUSBlog wrote
yesterday afternoon, “the demise of public employee unionism was at least on the table for lively discussion” during the oral arguments. “If Justice Antonin Scalia could be persuaded to join in doing it in[,] there just might be enough other votes,” he suggested.
Put another way, if the Court uses this case to reexamine the basic philosophical and legal questions rather than limiting itself to examining the specific case that Harris has brought, then, as Greenfield argues, “the right to unionize will be in shreds.” (Or, perhaps more accurately, the capacity of public unions to force people to fund them will be in shreds.)
Greenfield evidently believes that unions are vital to the national interest. I take the other view: holding, like Franklin Roosevelt, that because the public purse is theoretically infinite, “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” Either way, we can presumably agree that the Court should at least strike down the provision in the law that so cynically renders Pam Harris a government employee? Judging by the oral arguments, there may well be the votes to do this.
As for the more general question of whether the state may compel its employees to furnish private outfits with contributions? Well, if that is not unconstitutional, it is at the very least immoral. Conservatives intent on bringing an end to this ugly chapter in government overreach should continue their drive to legislate it away in the states — and, all the while, hope modestly as they do so that the Court finally comes through for Josh, Pam, and all else who asks little more from their insolent, presumptuous governments than that they be allowed quietly to opt out from its sordid entanglement with Big Labor.
— Charles C. W. Cooke is a staff writer at National Review.