WASHINGTON – Something is terribly wrong.
The American judiciary is in crisis, and the Supreme Court is about to make it worse.
In a stunning 5-4 decision, the court on Monday overturned decades of precedent in its ruling in Janus v. AFSCME. Before Monday, if an employee wanted to get political, he or she was virtually assured that a union would provide that service for free. After Monday, the court made a blanket declaration that the entire practice of union-funding free speech is unlawful. Justice Samuel Alito wrote in his opinion that there is “no First Amendment reason” for such a system. The court will now review exactly what exactly is so unconstitutional.
Will Justice Anthony Kennedy, the swing justice long critical to resolving these issues, give up free speech here? I think the court is done with the issue, and is instead going to return the matter to the nation’s governors and state legislators. Whether Democratic or Republican, these states do not want to pay up. For instance, at least 15 states have already enacted laws restricting unions’ collective bargaining rights and preventing them from using taxpayer money to support election candidates. I am still not sure what such laws do, beyond what the justices spelled out Monday. The court must now ask the state legislatures to write the difference between “free speech” and “no speech” into their statutes.
One thing is clear. The Roberts court’s language in Janus does not disguise its view that this is a raw power grab and that any effort to give corporations and employees the ability to strike big, fat deals in exchange for political speech would have the potential to fracture the fabric of our democracy.
Whatever the precise meaning of Janus, the Citizens United decision of 2010 is quite explicit about its hope for just such a political dynamic. “Expanding corporate political speech may undermine democracy itself,” Chief Justice John Roberts wrote. “A century ago, no major political issue went to a vote without receiving its first airing in newspapers, on radio or in the airwaves, and on the printed pages of magazines. And a century before that, the press was a vigorous and vibrant forum for discussion of political matters.”
So we have a potentially catastrophic development right before our eyes, and the Roberts court has already not only said no to the largest campaign-finance measure in U.S. history, but it has actually added to the spread of consolidation in American society. Now it intends to crush the voice of individual and collective workers. Who would not see that as the ultimate expression of this Court’s rejection of the bedrock ideal of democracy?
The truth is that this is something at odds with the precedents and instincts of so many of the justices in the past several decades. Before Janus, only five of the 14 justices, all appointed by Democratic presidents, signed on to Janus. Three of the justices, appointed by Republican presidents, dissented. It seems fairly clear that the trend is away from the hard line on public-sector unions that the Roberts court has just taken.
This is not like a campaign-finance case in which there is a clear-cut political end in mind. This is a naked, centralization of power that threatens to undermine democracy as much as corporate rights. This is indeed about the gold standard of the rights of employees and government employees – the right to safe workplaces and good pay for hard work. It is also about the right of the middle class, which depends on full-time, middle-class jobs, and the ability to compete in a global economy, both of which now depend on unions.
None of this is that controversial. The challengers, backed by the Grover Norquist-backed Americans for Tax Reform, point out that public-sector unions spent more than $30 million during the 2016 presidential campaign. So union leaders went to the Democratic Party, raising money and pouring it into the pockets of candidates who promised to keep and expand union powers, and these candidate were duly elected. Then the unions lost.
This is “political speech” too, just like the endless money spent to make our politicians believe that this is the best system for the country. It is no secret that the funds raised for this “political speech” have little to do with politics and everything to do with the buy-down of the electorate. It is dispiriting to know that the very same justices who have worked to protect and expand corporations