The Corner

Politics & Policy

With Scalia Gone, Unions Win for Now

It is a sad day when the Supreme Court ends up not being able to permanently free public workers from their mandatory obligations to pay union dues even when they choose not to join the union. Yet this is what happened today, when the Supreme Court deadlocked on a lawsuit brought by ten California public school teachers hoping to abolish unions’ ability to require compulsory dues in more than 20 states.

By all accounts, back in January it looked like the justices would deal unions a major setback by freeing millions of government workers. Unfortunately, Justice Scalia died. As the New York Times reports:

It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right….

When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment. Justice Scalia’s questions were consistently hostile to the unions.

His death changed the balance of power in this case, and most likely in many others, although 4-4 decisions mean an issue remains open and could return to the court in short order. In the case of Tuesday’s ruling, which set no precedent, unions recognized that their victory was only provisional.

The Wall Street Journal adds:

The 4-4 vote is the most dramatic consequence yet of last month’s death of Justice Antonin Scalia. His comments at January’s arguments suggested he would have voted to overrule a 1977 precedent allowing public employee unions to collect mandatory dues from represented workers if authorized by state law.

This issue isn’t my area of expertise and I certainly assume there are many layers at play here. However, the simple notion that public workers would be forced to buy something they may not want is disturbing. If unions are providing such great services or spending their political money in a way that public workers appreciate, they shouldn’t have problem getting workers to enroll and support their activities. But that’s not how unions want things to be. Until the Right to Work movement started to spread across the country, unions wanted workers to be compelled to belong to a union and to pay mandatory dues.

I personally oppose government unions because, unlike private unions, when they negotiate increases in salaries for their members, the people who will ultimately pay the bill, taxpayers, aren’t sitting at the negotiation table. So I would have been happy to see unions lose some of their oversized powers for once through this court decision. Incidentally, President Franklin Delano Roosevelt wasn’t in favor of allowing federal government workers to unionize. He noted, “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” For more on why we should get rid of government unions, you can read this good piece by Ed Morrissey over at Hot Air from a few years ago. It includes a long excerpt from this great piece by Jonah Goldberg.

According to the Journal, here is what could happen next and when:

“With the death of Justice Scalia, this outcome was not unexpected,” said Terry Pell, the president of the Center for Individual Rights, the advocacy group that brought the case. “We believe this case is too significant to let a split decision stand and we will file a petition for rehearing with the Supreme Court.”

Because it takes five votes to rehear a case, the Supreme Court is unlikely to grant such a petition in the near future. It is rare for the court to agree to rehear a case at the request of the losing party. If they don’t dismiss the petition outright, the justices would almost certainly hold it for action until a new justice is seated, which might not happen until mid-2017. At least one other lawsuit raising a similar issue is pending in the lower courts, but its prospects likewise are dim until the Supreme Court again has nine justices.

Another route, I assume, is a change in state laws authorizing this mandate imposed on workers. We have seen some of that happening in the wake of the Kelo decision. If that is the case, let’s hope that lawmakers in those 20 states find the courage to confront unions sooner than later.

If you are interested, the Heritage Foundation’s James Sherk had a great piece a few months ago about the labor-reform plan proposed by Governor Scott Walker when he was running for Congress.


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