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Hope from Scalia?


I was feeling pretty hopeless about the forthcoming Supreme Court decision in Harris v. Quinn, which challenges the constitutionality of states signing closed shop contracts with public sector unions. If the right-wingers have their way, states would not be allowed to do this, effectively making the various levels of the federal government operate by right to work laws and kneecapping SEIU and AFSCME, two of the last major successful unions in this country. But as Moshe Marvit reports, Antonin Scalia in oral arguments was quite hostile to the right to work argument:

Scalia turned the NRTW argument on its head by raising the hypothetical of a policeman who, after asking a dozen times for a raise, was denied access to the police commissioner. Did he have his First Amendment rights violated? The answer was no. With this device, Justice Scalia highlighted how the Supreme Court has recognized that the government has wider latitude in dealing with its employees than in dealing with its citizenry. The police commissioner telling his secretary that he didn’t want to speak with his subordinate no more violated the policeman’s First Amendment rights than charging healthcare workers a fair share fee for union representation does theirs.

At one point in the arguments, when Justice Kagan suggested that Scalia believed that the NRTW position was valid, Scalia interrupted to clarify, stating, “I want to hear the answer, too, because, contrary to what Justice Kagan suggests, I didn’t say your First Amendment argument was valid … I said at least it was a comprehensible argument.”

When the NRTW attorney suggested that the way homecare workers negotiate for higher wages was not internal workplace speech, but rather more highly protected political speech, Scalia objected, saying, “Why isn’t it? I mean, it is for private employers.” Scalia went on to suggest that employers may stand to gain by having their workforce represented by a single union. “There are some private employers who think they’re better off with a closed shop and they just want to deal with one union. … They do this as private employers because they think it is in their interest as an employer. Why can’t the government have the same interest?” Coming from Scalia, these arguments have far more force than they would from one of the more liberal justices.

Seattle University Law Professor Charlotte Garden, the author of an amicus brief by labor law professors supporting the union in Harris, tells Working In These Times that Scalia’s position in this case was in line with his partial concurrent opinion in a 1991 case, Lehnert v. Ferris Faculty Association. “Scalia also accepted in Lehnert—and seemed to accept in the argument [on Tuesday]—that requiring the union to fairly represent all members of the bargaining unit, but not requiring the agency fee (which is a model that states are free to adopt) puts pressure on the bargaining relationship by allowing represented workers to free ride,” she says.

Well, I’ll believe it when I see it. And Scalia’s federalism arguments are usually rank hypocrisy that apply only when they favor his personal policy positions. But maybe he cares enough to let states make their own choices here.

At least there’s reason to hope for the future of public sector unionism. For today at least.

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