Class War at the Supreme Court

By Harold Meyerson
June 26, 2012
http://www.washingtonpost.com/opinions/harold-meyerson-class-war-at-the-supreme-court/2012/06/26/gJQAuffO5V_story.html

On the eve of the Supreme Court's much anticipated
ruling on Obamacare, here is a simple test for detecting
the politics behind a decision: When reading the
rulings, look for the double standards and answers to
questions not posed by the cases themselves. By those
measures, the Supreme Court's record in the past week
fairly reeks of the justices' politics.

Exhibit A is Justice Samuel Alito's majority opinion in
Knox v. Service Employees International Union, Local
1000, in which nonunion California state employees whose
wages and benefits were nonetheless set through the
collective bargaining process of SEIU - the state's
largest union - sued the local to get back a special
dues assessment it levied in 2005 to fight two ballot
measures. The union's normal practice was to allow
nonmembers to opt out of paying the roughly 44 percent
of dues that went to matters not directly related to
collective bargaining, such as election campaigns. In
this instance, however, no such opt-out was allowed.

The issue before the court was whether mandating the
collection of the special assessment from nonmembers
violated their constitutional rights to free speech.
Alito and the four other conservative justices ruled
that it did, and liberal Justices Sonia Sotomayor and
Ruth Bader Ginsburg agreed in a concurring opinion. But
Alito's opinion didn't stop there. It also changed the
long-standing practice of allowing nonmembers to opt out
of paying dues toward union functions outside collective
bargaining, mandating instead that the unions "may not
exact any funds from nonmembers without their
affirmative consent." In other words, unions would have
to ask for nonmembers' permission to collect political
assessments and, possibly, any dues at all. "Individuals
should not be compelled to subsidize private groups or
private speech," Alito wrote.

Alito's ruling struck at the heart of American unionism.
By laying the groundwork for creating a right for
nonmembers to avoid dues payments, he came close to
nationalizing the right-to-work laws that 23 states have
adopted (though 27 have not). As Sotomayor noted in a
somewhat astonished dissent (Ginsburg and Justices
Stephen Breyer and Elena Kagan dissented on this point
as well), this wasn't the question before the court.
Neither side had argued that issue in their briefs or
oral presentations. "The majority announces its novel
rule," Sotomayor wrote, "without any analysis of
potential countervailing arguments." And it did so in
defiance of the court's own Rule 14, which states that
"only the questions set out in the petition or fairly
included therein will be considered by the Court."

Taken in context with the conservative majority's other
recent rulings, Alito's opinion also revealed the most
class-based double standard the court has exhibited
since before the New Deal. In the 2010 case Citizens
United v. Federal Election Commission - rendered by the
same five justices who signed onto Alito's ruling in
Knox - the court ruled that corporations could directly
spend their resources on political campaigns. These two
decisions mean that a person who goes to work for the
unionized Acme Widget Company can refuse to pay for the
union's intervention in political campaigns but has no
recourse to reclaim the value of his labor that Acme
reaps and opts to spend on political campaigns. Citizens
United created a legal parity between companies and
unions - both are free to dip into their treasuries for
political activities - but Knox creates a legal
disparity between them: a worker's free-speech right
entitles him to withhold funds from union campaign and
lobbying activities, but not the value of his work from
the company's similar endeavors.

If you seek a precedent for this anomaly, might I
suggest the following sentiment on unions written (not
in a court ruling, mind you) by former president William
Howard Taft in 1922, when he was chief justice: "That
faction we have to hit every little while." That's the
"legal" tradition to which Alito adhered: fear and
loathing of workers' organizations.

The club champion for double standards, however, is not
Alito but Antonin Scalia. Dissenting from this week's
decision striking down major provisions in Arizona's
anti-immigrant law, he argued that Arizona has the
sovereign rights of a nation in protecting its borders -
a right he gleans through such a bizarre reading of the
Constitution that not one of his fellow conservatives
signed on to his dissent. Yet the same day, Scalia
signed on to a Gang of Five decision declining to hear
Montana's case that its century-old law banning
corporate contributions to political campaigns should
take precedence over Citizens United. In the world
according to Nino, Arizona has the rights of a nation-
state, but Montana must submit to the Gang of Five.
You're sovereign when Scalia agrees with you; you're
nothing when he doesn't.

Politics? Heaven forfend!

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