Bench Memos

Next Monday’s Ruling in Harris v. Quinn

Public-sector union bosses will have difficulty sleeping this weekend, as they await the Supreme Court’s disposition on Monday of what may be the surprise blockbuster of the term, Harris v. Quinn. The Court may well overrule a dubiously reasoned precedent from 1977—Abood v. Detroit Board of Education—that held that the First Amendment allows the government to condition a person’s employment in the public sector on that person’s paying fees to a union.

Public-sector unions, of course, have benefited massively from the coerced funding that Abood allows.

The unions’ worst nightmare became more vivid yesterday when Chief Justice Roberts and Justice Breyer wrote opinions from the Court’s January calendar. That leaves Justice Alito as the only justice who has not yet written a lead opinion from that calendar. Alito has also written one fewer opinion for the term than any of the other justices. So it’s a very good bet that he was assigned to write in Harris.

Two years ago, in Knox v. SEIU, Alito wrote an excellent majority opinion that held that the First Amendment does not allow the government to authorize a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political activities. As I discussed at the time, the Knox ruling was significant less for its specific holding than for the Court’s long-overdue awakening to what Alito aptly called “the critical First Amendment rights at stake.”

The Court in Knox did not “revisit … whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” But it did observe that the free-rider arguments that those cases have relied on—i.e., preventing nonmembers from free-riding on the union’s collective-bargaining activities—“are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.” So the Court’s ruling on Monday may be the occasion for correcting that anomaly.

Most Popular

White House

The Trivialization of Impeachment

We have a serious governance problem. Our system is based on separation of powers, because liberty depends on preventing any component of the state from accumulating too much authority -- that’s how tyrants are born. For the system to work, the components have to be able to check each other: The federal and ... Read More
Elections

Put Up or Shut Up on These Accusations, Hillary

Look, one 2016 candidate being prone to wild and baseless accusations is enough. Appearing on Obama campaign manager David Plouffe’s podcast, Hillary Clinton suggested that 2016 Green Party candidate Jill Stein was a “Russian asset,” that Republicans and Russians were promoting the Green Party, and ... Read More
Culture

Feminists Have Turned on Pornography

Since the sexual revolution of the 1960s, the feminist movement has sought to condemn traditional sexual ethics as repressive, misogynistic, and intolerant. As the 2010s come to a close, it might be fair to say that mainstream culture has reached the logical endpoint of this philosophy. Whereas older Americans ... Read More
PC Culture

Defiant Dave Chappelle

When Dave Chappelle’s Netflix special Sticks & Stones came out in August, the overwhelming response from critics was that it was offensive, unacceptable garbage. Inkoo Kang of Slate declared that Chappelle’s “jokes make you wince.” Garrett Martin, in the online magazine Paste, maintained that the ... Read More
U.S.

‘Texodus’ Bodes Badly for Republicans

‘I am a classically trained engineer," says Representative Will Hurd, a Texas Republican, "and I firmly believe in regression to the mean." Applying a concept from statistics to the randomness of today's politics is problematic. In any case, Hurd, 42, is not waiting for the regression of our politics from the ... Read More
White House

The Impeachment Defense That Doesn’t Work

If we’ve learned anything from the last couple of weeks, it’s that the “perfect phone call” defense of Trump and Ukraine doesn’t work. As Andy and I discussed on his podcast this week, the “perfect” defense allows the Democrats to score easy points by establishing that people in the administration ... Read More