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A Fitting Legacy for Anthony Kennedy


I will have thoughts on the retirement of Anthony Trump Kennedy imminently. In the meantime, “enjoy” Dylan Matthews on today’s iteration of the Republican war on organized labor:

Alito, in his opinion, has to rebut the idea that union speech in the context of collective bargaining is essentially apolitical, and about wages and benefits for workers. If it’s speech made as a matter of course during normal business hours, then the claim that compelling that speech violates the First Amendment is dubious. Otherwise, if, say, you work at the DMV and your boss orders you to go talk to someone waiting for a driving test, that order could be construed as “compelled speech.” That’s obviously ridiculous, and a result the Court wants to avoid.

So Alito avoids it by arguing that everything that public sector unions do in collective bargaining is political, and has major political ramifications. In particular, he doesn’t appear to like what it’s done to pensions and public sector spending.


Alito’s opinion was even more anti-union than many observers expected. Not only did it end agency fees for public employees, but it required, for the first time, that union membership for new public employees be “opt-in” rather than opt-out.

It’s like they new with Kennedy retiring they didn’t even have to pretend this was a First Amendment case in any meaningful sense anymore. Like Matthews, I think Kagan’s conclusion puts it well:

The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.

Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements.

Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today, that healthy—that democratic— debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.”

And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. … Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.

This is pure power politics, nothing more, and get ready for a lot more of it.

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