Freedom Foundation

Two years late, but hopefully justice nonetheless

All things considered, it still would have been better if the U.S. Supreme Court had settled the question of mandatory union dues and/or fees two years ago as planned in Friedrichs v. California Teachers Association. For one thing, thousands – if not millions – of government employees all over the country would almost certainly have opted out by now and would be enjoying their hard-won freedom.

And for another, those of us with a rooting interest in the case would have been spared a year’s worth of sheer terror at the prospect of Hillary Clinton choosing a successor to Justice Antonin Scalia, whose untimely death deadlocked the court and caused the delay in the first place.

Happily, we were spared that nightmare scenario by Donald Trump’s surprising (and to the unions, horrifying) election as president instead, followed quickly by his nomination of Constitutional originalist Neil Gorsuch to the U.S. Supreme Court.

On Monday, the court heard oral arguments in Janus v. AFSCME – which makes precisely the same point Friedrichs did: Forcing public-sector workers to pay “agency fees” is just as much a violation of their First Amendment rights as paying full dues because there’s no way to separate a union’s political expenditures from its collective bargaining costs when everything a union does is inherently political.

To anyone interested in defending the Constitution and safeguarding the rights of individuals – a Supreme Court justice, for example – that distinction would be critical. But if your top priority is maintaining the flow of confiscated dollars from workers to unions to liberal politicians, your viewpoint gets a little skewed.

Case in point, this exchange between Justice Ruth Ginsburg, liberal doyenne of the court, and William Messenger, attorney for the petitioner, Mark Janus:

Ginsburg: So you’re saying that you do then recognize that the unions can be in a position where they will be –  that the resources available to them could be substantially diminished?

Messenger: (T)o the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that’s a perfectly acceptable result.

Messenger later schooled Justice Elena Kagan, who argued the current arrangement is worth preserving just because it’s been in effect for more than 40 years.

Kagan: Our usual stare decisis doctrine makes it quite clear that reliance is an important consideration on the scales.

Messenger: Reliance on something that’s constitutional. Reliance on an illegal practice, no. In (this) instance, the prevalence of compulsory unionism in the states is a reason for reversing it.

And so it went. For sheer page-turning drama, the transcript of the hearing probably won’t replace “The Hunt for Red October” on my personal list of literary favorites.

Listen to the audio here.

Still, by all indications, it looks like it’s going to have a happy ending, which counts for a lot.