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The Future of Unions and the Courts

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Above: John Roberts Melville Fuller

Today is a terrible day in American history, but it’s nothing that wasn’t blindingly obvious when Donald Trump became president, and it would have been the same with any Republican president. Janus is a terrible decided case, using laughably ridiculous logic and filled with non-sequiturs that serve nothing more than to shift even more power to the already powerful. But this is the future. The Roberts Court is basically a reconstitution of the Fuller Court, with equally logically inconsistent decisions that happen to serve the contemporary political aims of conservative politicians. We can expect more and more of these cases in the future. This will get worse every year until Democrats control the majority on the Court and who knows when that will be.

Does this mean public sector unions are dead? No, of course not. But this is obviously a deeply disturbing precedent. The ideal for a public sector union in a right to work state, which is now the whole nation in the public sector, is the Culinary Union in Nevada, which is a huge power player in state politics and is doing a lot to turn that state blue. But let’s face it, most public sector workers do not exactly have a highly developed sense of class consciousness. A lot of people, even active union members, see their union as a “professional organization,” not a union actively fighting for more rights for workers. They aren’t intellectually inclined or prepared to turn into an organization doing the type of internal organizing necessary to build up membership, all of whom can now opt out.

My own union has done a lot of internal organizing to prepare for this, significantly raising our membership rates, although being a faculty union filled with people who think they are better than other faculty, we still have plenty of people who won’t join. But I know for a fact that we are an exception in getting ahead of this. Most faculty unions have done precisely nothing to prepare. That’s the case with many public sector unions. It’s frustrating because it was obvious this was coming for a long time. It would have happened two years ago in Friedrichs, but then Scalia dropped dead and we got a reprieve. And then Donald Trump became president and Neil Gorsuch became a Supreme Court justice. There was a 0% chance this decision would go the other way as soon as that happened.

So I am somewhat ambivalent about some of the early essays to come out about what unions need to do. Bryce Covert:

Workers will have to reconstruct this countervailing power and find new ways to build solidarity. We’re going to have to get bold again.

We’ve seen a version of what this could look like in this year’s teachers strikes. As the momentum of those strikes has shown, when workers are boxed into a corner there’s appetite for going outside the normal lines of acceptable action. In West Virginia, Oklahoma, Arizona and Kentucky, where teachers are not legally allowed to strike, they nevertheless walked out of classrooms and won raises for themselves and other state employees.

Americans have done this before. In the 1930s, workers had to get militant in the face of a legal landscape in which strikes and organizing were restricted or even banned. That period ended with a truce that exchanged labor peace for laws that facilitated unionization, a truce that is now all but broken. We have no choice but to take up our organizing arms once more.

I mean, yes, she’s right about that. And maybe that’s what happens. But various versions of this essay have been published with every major union loss since Reagan busted the air traffic controllers. And it never happens. Does it happen now? Certainly the case of the teachers is a good sign. But a whole lot of public sector union locals are very sleepy. And reconstructing the union militancy of the 1930s takes a whole wide set of factors that are really hard to replicate or that we wouldn’t want to replicate, such as the fact that lots of those militant union workplaces were also militant about being lily-white.

Moreover, given the extreme likelihood of further SCOTUS decisions limiting union activities, it’s just going to get worse. Plus, as I have explored throughout my labor history series, there is almost no evidence that American workers can win their struggles in the face of state power actively used against them. That includes the Court. And it really hasn’t mattered how militant workers have been. They can’t overcome the combined power of the state and employers except by electing politicians that will do the right thing. That’s hard to do and even harder to sustain.

So these are grim days.

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