Next time you hear some liberal foghorn spouting off about “activist conservatives” on the U.S. Supreme Court – particularly Justice Antonin Scalia – be sure to cite Monday morning’s Harris v. Quinn ruling to them.
Even a cursory look at the language of the decision shows how much the majority longed to overturn Abood v. Detroit Board of Education, a 1977 case that affirmed the constitutionality of so-called “agency shops,” in which workers can be fired for refusing to join the union or at least paying a fee for collective bargaining services.
Just a sampling of the Harris ruling includes these zingers:
- “The Abood Court’s analysis is questionable on several grounds.”
- “The First Amendment analysis in Hanson was thin, and Street was not a constitutional decision.”
- “…the court fundamentally misunderstood Hanson’s narrow holding, which upheld the authorization, not imposition, of an agency fee.”
- “The Abood Court also failed to appreciate the distinction between core union speech in the public sector and core union speech in the private sector, as well as the conceptual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.”
- “Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or non-chargeable … or the practical problems that would arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.”
- “Finally, the Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector.”
And yet, when the time came to write an opinion, the majority opted to leave Abood intact. Rather than declaring – as the plaintiffs had asked – that no public employee anywhere could be compelled to join a union or pay a representation fee to one, the court simply decided the plaintiffs in the Harris case were never full-fledged public employees to begin with.
As home healthcare practitioners – in many cases family members being compensated by Medicare for looking after a loved one – the Illinois workers were more like contractors than regular employees, the majority decided. Therefore, there was no need to overturn Abood in this particular case.
Given half a chance to overturn an existing precedent they didn’t like, do you think for one nanosecond the liberals on the court would have demonstrated a similar level of judicial restraint?
Even more noteworthy is that, by all accounts, the swing justice in Harris wasn’t moderate Anthony Kennedy, but Antonin Scalia. Although widely excoriated by liberals as the most conservative – and, by extension, activist – member of the court, Scalia is, in fact, a stickler for original intent.
Regardless of whether the outcome happens to suit his personal political agenda, Scalia always follows the Constitution. Period. No “penumbras and emanations.” Just hard facts.
And this morning, a lot of unions owe their continued existence to that fact.
There’s an old maxim that says you can tell a lot about what a person is capable of doing by listening to what he accuses you of. In a legal context, that means liberals love to accuse conservative justices of ignoring the Constitution and legislating from the bench. But they can never cite real-world examples of cases like Griswold or Roe v. Wade where a conservative ruling had nothing to do with the Constitution and everything in the world to do with personal ideology.
Show me a case like Harris, where the liberal justices didn’t go as far as that they might have just because they couldn’t justify it constitutionally, and I’ll believe both sides are equally activist. Until then, no one can convince me the conservatives don’t hold themselves to a higher standard.