We may not have gotten the fateful Affordable Care Act or Arizona immigration law decisions from SCOTUS this week (those are coming next week presumably, the last week of term before recess) but we did get two pretty big cases
as Scott Lemieux discusses here.
Two other major rulings today, however, illustrate the importance of partisan and ideological divides on the Court. Dorsey v. U.S. is a case that arose from attempts by Congress to correct the vastly disproportionate sentences given to possessors and distributors of crack cocaine (as opposed to powdered cocaine). The crack/powder disparity was particularly problematic because it disproportionately burdened African-Americans. The question the Court addressed was whether the less disproportionate sentence (which reduce the crack/powder disparity from 100-1 to 18-1) applied to those who committed an offense before the new guidelines took effect but were not sentenced until afterwards.
In a 5-4 decision among ideological lines—with the Court's most moderate Republican, Anthony Kennedy, joining the Court's four Democratic appointees—the Court logically held that the new guidelines did apply retroactively in these cases.
This was the 5-4 split we expect from SCOTUS these days, with Kennedy calling the shots. This time he made the right call. Far from this paradigm was the other major ruling today,
Knox v. SEIU.
Another important case today also fell along ideological lines, although in a more complex way (with two of the Court's more liberal justices joining the judgment of the Court's Republican appointees but not the reasoning.) Going far beyond what was necessary to decide the case at hand, the majority in Knox v. SEIU held that when public-sector unions levy a special assessment it must be done on an "opt-in" basis (requiring affirmative consent) rather than an "opt-out" basis (which allows people to not to pay an assessment related to political action after being given notice.) The idea that the First Amendment requires an opt-in procedure is such radical policy-making that, as Justice Sotomayor argued in her concurrence, that the argument was not even made by the individuals bringing the challenge to the SEIU's actions, who "did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution." As reflected by the fact that Sotomayor and Ginsburg concurred in the judgment, the outcome of the case is more defensible than the reasoning.
And that's the far more shocking ruling, especially given it almost completely contradicts the reasoning given in
Citizens United. There, the majority said that a corporation's right to political speech was paramount over everything else including the employees and shareholders of the company who may object. The
Knox decision is basically the opposite: the individual non-union members have a greater right to First Amendment rights than the unions do. What this effectively does is place shackles on unions in the political speech through money category, but leaves unfettered corporations as a political entity.
But there's a
much bigger problem in the
Knox decision's language on the opt-in requirement
as Garrett Epps points out:
That new rule would impose substantial administrative costs on the union, and reduce the amount it collects. But more significantly, the majority’s rationale would seem to apply to all agency payments by non-members. And indeed, language in the opinion suggests that the majority thinks the whole idea of agency fees is a violation of the First Amendment. “[C] compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,’” the Court said, quoting an earlier case. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”
If I were the National Right to Work Legal Defense Committee, these words might sound to me very much like, “Bring us a case and we will void the agency shop altogether.” That’s particularly true given language later in the opinion calling the entire “free rider” rationale into question. If workers can’t be required to join a union or to pay agency fees, then the so-called “right to work” zone will cover 50 states and Puerto Rico.
What Epps is saying here is mind-numbing. If he's right in interpretation here, it means with the right case, the Scalia-Thomas-Alito-Roberts-Kennedy majority are indicating that the
freedom to not belong to a union is so important that it literally means that
unions themselves may violate the First Amendment on non-union workers by collecting membership dues and then using those dues for political action that the employees may not agree with, and almost certainly means the complete end of unions and collective bargaining in the United States could be just a few years away. At the very least the decision indicates the conservatives on the Roberts Court want to take up the question of
if unions should even be allowed to exist, of if they violate freedom of speech of non-union workers.
Think about that.
Citizens United said that as a business entity engaged in political speech, corporations have unlimited resources and can donate whatever they want and take whatever political positions they want regardless of what shareholders and employees think. But unions as a business entity engaged in political speech? Alito seems to be suggesting that when unions use dues for political activism, anything short of a unanimous decision of all contributing union members is a
violation of freedom of speech of those who dissent. Corporations are people and get unlimited political speech and can donate unlimited money to make that speech heard. But unions?
One dissenting, dues-paying union member is enough to eliminate that right.
If there was still any doubt in your mind that the Supreme Court in this country is corrupt beyond imagining, this decision should chill you to the bone.
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