“Our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority.” –-James Madison
By Jim Miller
After last week’s slew of bad Supreme Court rulings much of the media attention rightfully went to the horrendous “Hobby Lobby” case where the rights of corporations were deemed more important than the rights of women.
But there was another big decision where the Supreme Court surprised some observers and ruled narrowly on Harris v. Quinn, the case which could have gutted public sector unions and virtually wiped out their ability to play in American politics by ending all public sector unions’ ability to collect agency fees. As the Daily Kos noted of the case:
Harris v. Quinn, is about the constitutionality of “agency fees” charged by public sector unions to all workers in a unionized setting, even non-union members. These fees are essential to their operation . . . Agency fees in principle are important to public employee unions because they’re required by law to bargain for all workers in a unionized setting. If agency fees for non-members are ruled to be a violation of free speech, unions fear they would lose funding, become less effective at bargaining for benefits and, in turn, lose members.
If the Supreme Court had ruled broadly it would have crippled public sector unions by making them much less effective, leading to a loss of political power, bargaining clout, and lots of members. And though Harris v. Quinn only involved public sector unions, their demise would have surely been a death knell for the entire American Labor movement.
But rather than ruling broadly on agency fees for all public sector unions, the court chose instead to invent a new category of public sector worker they called the “partial public employee” and applied that category only to home healthcare workers in Illinois. As Justice Kagan notes in her dissent, the bizarre logic of the majority is hard to discern, but the future inclination of the majority was made clear: given another case that goes after all public sector unions, they will happily impose national “right to work” by judicial decree.
As Jeffrey Toobin observed in The New Yorker in the wake of the Hobby Lobby and Harris decisions, both fit the court’s pattern of ruling narrowly on an initial case that then sets up the possibility of a broader, more damaging ruling later on: “It’s generally a two-step process: in confronting a politically charged issue, the court first decides a case in a ‘narrow’ way, but then uses that decision as a precedent to move in a more dramatic, conservative direction in a subsequent case.”
Thus, while the Court did not overturn Abood (the case that established the legal standing of agency fees for public sector workers), the conservative majority indicated that they find Abood suspect and that pretty much guarantees that we’ll see more cases brought to the high court aiming to send American labor into a death spiral.
In the short term, the impact of the Harris ruling blunts union organizing in one of the fastest growing sectors of the U.S. Labor movement. And when one considers the racial and gender composition of that workforce, the Supremes’ invention of the “partial public employee” is, as Jane McAlevey points out on AlterNet, reminiscent of the Dred Scott decision:
It’d be more than alarming and resoundingly condemned if any institution in the U.S. tried to take our country back to the days before Dred Scott, when people of color in this country fell under the racist and dehumanizing “three fifths rule.” But the Supreme Court’s decision in Harris v. Quinn smacks of a new three fifths rule by declaring the fastest growing occupation in the nation, an occupation dominated by people of color and women, as “partial” or “quasi” public employees.
So just as the Taft Hartley Act (which among other things enabled mostly southern states to embrace “Right to Work” laws in the forties) shackled unions for years to come and excluded many people of color from representation, this Supreme Court ruling is designed to not just hinder unions, but crush them and the workers to whom they offer hope. On this note, McAlevey argues:
Harris v. Quinn takes aim at public-sector workers precisely because today they are the largest segment of unionized workers and, not coincidentally, a leading source of employment for people of color and women. The efforts of today’s economic elite—our “1 percent”—to do a Taft-Hartley on the fastest growing group of workers within public sector unions, homecare and childcare employees, seem like déjà vu all over again.
And when we see who is behind this case, the National Right to Work Committee with its connections to the Koch brothers, the American Legislative Exchange Council (ALEC), the John Birch Society, the Walton family, and a host of other corporate funders, it’s clear what the end game is. As Jay Riestenberg and Mary Bottari note in “Who Is Behind the National Right to Work Committee and its Anti-Union Crusade?”:
The NRTWC also does extensive lobbying on the state level. In 2012, lobbyists registered with the NRTWC were on the ground in Indiana and Michigan when both states passed anti-union “right to work” bills and are big supporters of Wisconsin Governor Scott Walker and his efforts to crush public sector unions. The NRTWC was an exhibitor at the 2011 annual conference of the American Legislative Exchange Council (ALEC), the corporate bill mill exposed by CMD in 2011. ALEC’s “Right to Work Act,” which has been in the ALEC library since at least 1980, is one of its most commonly used “model” bills. When Republicans took trifecta control of 26 state houses in November of 2010, it was a top agenda item at the December 2010 ALEC meeting. According to a 2010 email from ALEC to Wisconsin legislators that CMD obtained, ALEC referred to its “Right to Work Act” as a “solution… for your state’s most pressing issues.” Currently 24 states are so-called “right to work” states. In 2013, 15 states introduced legislation based on ALEC’s “Right to Work Act.”
That’s why this decision and those sure to follow in its wake are the most important labor law cases in decades. If successful, the right will have made America a “right to work” country in a way that will guarantee lower wages and more poverty for American workers.
And if you think this is just a concern for unions or low-wage workers, think again. As The Daily Kos points out, the end of agency fees and the subsequent gutting of the political power of the labor movement would mean the end of the Democratic Party as we know it: “If you think the Party is too cozy with Wall Street now, imagine what that would be like. Or if you want to enter the realm of the truly absurd, imagine a GOTV effort dependent upon the good graces of Hedge fund managers.”
Thus the road toward an even more deeply entrenched plutocracy has been clearly marked, and we have just taken yet another very significant step down that path. And with this court that only seems to see the rights of corporate “persons,” our best hope is that another anti-labor case doesn’t come until after one of the conservative majority retires or dies with a Democratic President in office who nominates a judge who respects the rights of workers.
Until then, the high court is the refuge of the minority of the opulent guarding against the interests of the majority; it is a court that has made it clear they believe, along with the first justice of the Supreme Court, John Jay, that “those who own the country ought to govern it.” Of late they are doing a pretty good job not just of holding the line against establishing any new rights for whom many of our nation’s founders called “the mob,” but also of rolling back a good number of the key democratic gains of the twentieth century.
Indeed, this batch of “strict constructionists” seems truly bent on taking us back to the future to a time when the rights that many of us had come to take for granted did not exist.