“Here’s a possible solution to the most commented-upon mystery growing out of the Supreme Court’s argument this week in a case of crucial importance to the future of public employee unions: Why did the normally loquacious Justice Neil M. Gorsuch stay silent? Could the junior justice have caught something from Justice Clarence Thomas, who famously went a decade without asking a single question? Was Justice Gorsuch overcome by the knowledge that with his eight colleagues tied four to four — as revealed by the vote two terms ago in a nearly identical case that was argued but not yet decided by the time of Justice Antonin Scalia’s death — he holds the fate of organized labor in his hands?
No, nothing as tantalizing as that. I think the answer is probably a good deal more pedestrian. The lawyer representing the labor union, David C. Frederick, is Justice Gorsuch’s former law partner. When President Trump nominated Judge Gorsuch to the Supreme Court a year ago, Mr. Frederick published an opinion essay in The Washington Post under the headline: “There Is No Principled Reason to Vote Against Gorsuch.” Identifying himself as “a longtime supporter of Democratic candidates and progressive causes,” Mr. Frederick called Judge Gorsuch “a longtime friend” and described him as “brilliant, diligent, open-minded and thoughtful.” So why would Justice Gorsuch beat up on his old friend when Justices Samuel A. Alito Jr. and Anthony M. Kennedy were doing an enthusiastic job of it?”
“The challengers, supported by the Trump administration, maintain that this longstanding distinction between chargeable and nonchargeable expenses is unsupportable because everything a public employee union does is inherently political. Thus, they argue, it violates the First Amendment for the objectors to have to support the union in any way, and therefore the precedent, Abood v. Detroit Board of Education, must be overruled.
In support of this argument, Justices Alito and Kennedy were obsessively focused on unions as political actors that could, in Justice Alito’s words, “push a city to the brink and perhaps over the brink into bankruptcy.” Their goal was to show that public employee unions are political to their very core.
“Do you think that this case affects the political influence of the unions?” Justice Kennedy asked Mr. Frederick. When the lawyer began his answer with a No, Justice Kennedy went on, with evident sarcasm:
“So you’ve — I can try to find a union newsletter which says don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us?”
“That’s not a chargeable expense, Justice Kennedy,” Mr. Frederick began. “We’re talking about —” “
Unions and Collective Bargaining power. This is a difficult subject. In Hamden and the State of CT, we have a too much power in the public employee unions, or, for complex reasons, they negotiated for overly generous, and unsustainable pension and work benefits, that now endanger the economies of the state and local governments. Meanwhile, we have workers at places like Walmart, Subway, and home nursing aides, who are so poorly paid, that they remain in poverty after working full time. How will this extreme haircut affect these two problems? On the one hand, we have unionized public service labor that is overpowerful, and needs a haircut, and poorly paid service workers in the private sector, who desperately need more collective bargaining power, and better wages and benefits. The benefit of this right wing hair cut it that it might bring some support to Hamden and Connecticut against the unsustainable benefits agreed to in the last 40 years or so. Will this haircut throw out many babies with the bathwater? Or will it curb the the excesses of big labor, while allowing for a new growth in unionization in the private sector where collective bargaining is so desperately needed. The answer probably lies in the practices of counties like Germany, and the Scandinavian countries, where the social net is stronger, which allows for more risk taking. David Lindsay Jr. is the author of “The Tay Son Rebellion,” and blogs at TheTaySonRebellion.com and InconvenientNews.wordpress.com