Anthony Kennedy’s retirement is largely irrelevant when it comes to issues of work. He was always a horrible right-wing hack on these questions. He peppered the oral arguments to Janus with clearly relevant constitutional statements about unions costing taxpayers too much. I missed the part of the Constitution where that was laid out I guess. Anyway, Brett Kavanaugh is certainly going to be no better than Kennedy on labor issues, but he’s not likely to be significantly worse because that’s not really possible. This has nothing to do with Trump either. Not only is Kavanaugh an establishment Republican pick, but any Republican would have named a justice that will vote the same way on labor issues. Republicans hate unions and they’ve been fighting this battle since they lost the first time in the 1930s and 1940s. They never accepted unions (people often cite Republican platforms in the 50s talking about supporting collective bargaining, but that was a reflection of union power; behind the scenes, corporations and their Republican allies were organizing to build to what we see today). When Reagan busted the air traffic controllers union in 1981, that was the culmination right there of a long effort and the war since has been more public and more successful.
Janus v. AFSCME was a disaster for labor, but it seems to me that it was portrayed as a kind of last step. Right to work for public sector unions nationally was achieved, unions lost. But it’s not the last step at all. There are all sorts of fronts unionbusters are preparing. This is part and parcel to what it means to be a Republican now, as the architect of it is now a Trump nominee to head the Administrative Conference, a formerly largely non-partisan role that is of course being politicized by the fascists. But this is what you really need to know:
Even before the Supreme Court struck down mandatory union fees for government workers last month, the next phase of the conservative legal campaign against public-sector unions was underway.
In March, with the decision looming, lawyers representing government workers in Washington State asked a federal court to order one of the state’s largest public-employee unions “to disgorge and refund” fees that nonmembers had already paid. Similar lawsuits were filed in California, New Jersey, New York, Pennsylvania, Minnesota and Ohio.
The complaints could upend the legal system by arguing that states and private parties like unions face liability even though they followed the law as it existed at the time. They could also cost unions hundreds of millions of dollars.
This would completely bankrupt unions. They simply would no longer survive in their present form, except for unions with nearly universal membership. Those happen in fact to be the police and firefighter unions, where you simply can’t work there without being a member, for social reasons as much as anything. It’s coming fast too. I’m surprised the article didn’t mention Riffey v. Rauner, which the Court has agreed to hear next year:
But the NRWLDF is unlikely to stop there: An even more imminent possibility, stemming from the foundation’s right-to-work victories, will likely be the effort to claw back what Justice Alito referred to in his Janus opinion as the “billions of dollars [that] have been taken by nonmembers and transferred to public-sector unions in violation of the First Amendment.” In other words, now that the NRWLDF, in conjunction with the five conservative Supreme Court justices, has succeeded in crippling unions’ ability to collect future dues, the next move will be to bleed them for past dues.
The Court has already waded into this issue. On May 21, the NRWLDF appealed Riffey v. Rauner to the Supreme Court. This case is built upon the group’s win in the 2014 case, Harris v. Quinn, which imposed “right to work” on hundreds of thousands of home health-care workers. Through Riffey, which failed at the lower courts, the foundation is suing SEIU for $32 million, while also making the radical argument that all the workers who paid fair-share fees should be presumed to have paid involuntarily, whether or not they objected to the union, and should get all their fees returned. It is unclear whether this case will succeed, but it is moving forward: On the day after Janus was decided, as part of the Miscellaneous Orders the Court issues, it quietly granted the appeal, vacated the lower court’s judgment, and remanded it for further consideration in light of Janus.
Now, the legal standing for such a decision seems completely bonkers to me. Following an entirely legal process, unions required non-members to pay fairshare fees until Janus, when they didn’t any longer. But now, the new law is going to be applied retroactively? All the way back to the Abood finding in 1977? Or until when? How would this possibly work? Would this be the new standard for all Court findings? This seems utterly unworkable.
Or it would except for one thing–this is the Fuller Court rejuvenated. That court simply interpreted laws to fit the whims of corporations. That’s how you have the Sherman Antitrust Act not used to stop monopoly but deployed to bust unions, as in the case of 1908’s Loewe v. Lawlor. It’s entirely possible that the conservatives on the Court will simply create doctrine here that only applies to labor unions. Critics of the Roberts Court have already noted how they have weaponized speech to serve current Republican policy doctrine. That is going to continue.
The upshot of this is that currently existing public sector unions would be no more. They would have to declare bankruptcy. There’s no way to pay back decades of fair share fees. Workers may well reform a union, but then we know that the National Labor Relations Board is now used to stop meaningful unionization.
The one hope is that this legal precedent would be so nuts that John Roberts couldn’t go this far. So far, the courts have totally rejected all of these assertions, at least to my knowledge.
Courts have been sympathetic to same-sex spouses seeking to recover benefits or property they were denied before the Supreme Court’s recent decisions on same-sex marriage. But courts have specifically rejected such retroactive arguments — so far — in the context of union fees. After a 2014 ruling in which the Supreme Court struck down mandatory union fees for home-based workers paid through government programs like Medicaid, federal district judges dismissed at least three lawsuits seeking refunds of workers’ mandatory fees. (A fourth case that had begun earlier was settled after a judge denied the plaintiffs’ class-action certification.)
In all three cases, the judges found that the unions could claim a good-faith defense because they had followed “seemingly valid state laws” requiring the fees, as one judge put it, that were only later deemed to be unconstitutional. No appeals court has overturned any of these rulings.
Even so, Mr. Mitchell and his allies may get a favorable reception in the one court that really matters: the Supreme Court.
But it’s really about what Roberts, Thomas, Alito, Gorsuch, and Kavanaugh presumably will do. How confident do you feel?