Bench Memos

James Fallows, Unhinged

The Atlantic’s James Fallows, as it happens, was very taken by the New York Times’s editorial on Knox v. SEIU that I’ve critiqued. “It is worth reading carefully,” he says—and “Again, read the editorial”—even as his account shows that he understands very little of what Knox was about.

Fallows complains that the Court’s ruling “decree[d] new law contrary to what Congress had ordered and other courts had long approved.” His reference to what “Congress had ordered” is baffling. I have no idea what federal law he is referring to. Perhaps I missed it, but I see nothing in Justice Sotomayor’s opinion concurring in the judgment or in Justice Breyer’s dissent (nor even in the NYT editorial) that contends that “Congress had ordered” something on the matter of how nonmembers avoid paying for the political activities of unions. Nor does Fallows seem to have in mind that the First Amendment would trump a contrary federal law.

Fallows’s “contrary to what … other courts had long approved” is also sloppy. The narrow issue that the Court decided in Knox was a novel one. To be sure, Alito calls into question “whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake” even as he expressly states that “we do not revisit [those cases] today.” But the question was whether those cases should be extended to cover the issue in Knox.

What’s most bizarre is that Fallows uses his muddled understanding of Knox as the launching point for an “apocalyptic reading[] of the American predicament” that, in the fashion of a conspiracy theorist, finds all sorts of evidence combining into what he thinks any sensible person would recognize “as a kind of long-term coup it we saw it happening anywhere else.”


The Latest