In the 1990 case Rutan v. Republican Party of Illinois, the Supreme Court held that “unless party affiliation is an appropriate requirement for the position involved” hiring, promotion, and pay decisions for civil service jobs could not be based solely in support for a political party. Discriminating against public employees based on their political views, the Court reasoned, violated their First Amendment rights. A dissent written by Antonin Scalia and joined by (inter alia) Anthony Kennedy, argued that this coerced political expression did not violate the First Amendment.
If you believe that firing or disadvantaging civil servants for their political views although they hold jobs for which their political views are irrelevant is constitutional, making public sector employees contribute money to cover collective bargaining expenses (although not political activity) should be an easy case, right? Ha ha no, both Scalia and Kennedy clearly indicated that suddenly their belief that coerced speech did not violate the First Amendment was inapplicable in a much more marginal case.
Still, surely at yesterday’s oral argument in Janus Kennedy expressed principled reasons for his shift in views?
Justice Anthony M. Kennedy, normally the most moderate of the conservative justices, came out swinging.
Kennedy saw the unions as having a political agenda calling for “teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes.”
“Doesn’t it blink reality to deny that that is what’s happening here?” he asked Illinois Solicitor General David L. Franklin, representing one of more than 20 states that allow fees for nonmembers.
Kennedy’s typical views to not apply in this case because unions suck, just like higher wages for ordinary workers and increasing taxes to pay for more government services. I am shocked that the author of Bush v. Gore could be so nakedly partisan! Why, next thing you’ll tell me Kennedy is so hacky he would uphold the federal commerce power in Raich but not Sebeluis! In conclusion, both the First Amendment and the power to regulate interstate commerce vary according to Anthony Kennedy’s views about the appropriate scope of government action, because dignity.