The Consequences of Judicial Activism on the Supreme Court – The New York Times

“The Supreme Court will hear oral arguments today on one of the most impactful labor law cases in decades, but most people already know how it’s likely to turn out. In Janus v. American Federation of State, County and Municipal Employees, the court will consider whether all public-sector workers have a First Amendment right to be under so-called right to work, which allows workers to opt out of paying fees to unions that bargain on their behalf.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.Many observers have noted that if the court bans fair-share fees, it will hurt unions by, first, depleting them of funds and, second, undermining solidarity through the encouragement of free riding.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.”