In the end, it may not happen, but the demise of public employee unionism was at least on the table for lively discussion in a Supreme Court argument Tuesday morning. The case of Harris v. Quinn would only spell doom for government workers’ collective action, it appeared, if Justice Antonin Scalia could be persuaded to join in doing it in; there just might be enough other votes.
This seemed an unlikely case to even raise that issue, but raise it, it surely did. The case only involves home-care workers who provide medical services for patients one on one, and the prospect that their activities might pose a threat to labor peace appeared remote indeed. Several members of the Court, though, were insistent that this case raises very large issues about labor relations in the public sector — an issue that is stirring up a good deal of agitation around the country, especially in state and local government.
Aside from what was said explicitly from the bench, the atmospherics of Tuesday’s argument suggested strongly that this case has very large potential. The mood of the Court’s more liberal members was one of obvious trepidation, and that of its more conservative members — except for Justice Scalia — was of apparent eagerness to reach anew the core constitutionality of compulsory union support among public workers.
In other words, the only thing keeping public employee unions alive in this country is Justice Scalia, who might consider a court mandate busting practically every union in the country governmental overreach.
It's not looking good. Nina Totenberg:
"What I don't understand," said Justice Samuel Alito, "is why the union's participation in this is essential. ... Why do they need to have the union intervene here?" All of the benefits negotiated by the union could have been granted unilaterally by the state.
Alito suggested that former Illinois Gov. Rod Blagojevich, now in prison on corruption charges, recognized the union in exchange for a large campaign contribution. Solicitor General Donald Verrilli replied that in fact the union recognition program was enacted by large bipartisan majorities in the state Legislature
"In an era when government is getting bigger and bigger," said Justice Anthony Kennedy, "suppose the young person thinks that the state is squandering his heritage on unnecessary or excessive payments or benefits." Can the union "take money" from an employee who disagrees with the union on such "a fundamental question"?
In other words, Justice Kennedy is strongly implying that if a union doesn't have unanimous support among all members, they are unconstitutionally violating First Amendment rights. It's ridiculous, but there you have it. And that's a slippery slope, too. What's to stop them from then saying if a law doesn't have the support of all the people it affects, it's unconstitutional? If I don't agree with a law, does that mean my First Amendment rights are being trampled?
Who knows?
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