The Law & Economy Spectator

Justice Elena Kagan Scoffs at Public Employees

Forced unionism isn't a victimless crime.

By 7.2.14

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When does life begin? The question has vexed society for decades, but the Supreme Court has finally settled on a definition of personhood. According to the court’s Hobby Lobby decision Monday, we can now say that life begins at neither conception nor birth. Life actually begins at any time during the last half of the tax year, when more than 50 percent of the value of one’s outstanding stock is, directly or indirectly, owned by five or fewer individuals.

You see, the ruling in Hobby Lobby only applies to “closely held” corporations — family businesses and such — as defined in IRS Publication 542. Not that such a decision lends itself to consistency, as Justice Samuel Alito admitted, in his stirring confutatio. “The term ‘person’ sometimes encompasses artificial persons,” he wrote, “and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”

Or the unborn, one might add, who along with publicly traded corporations now constitute the class of quasi-persons who do not enjoy the freedoms afforded to legal persons such as human beings, nonprofits, and closely held corporations.

The court was correct, of course, to recognize even a circumscribed right of conscience, but there was another matter of compulsory participation it decided Monday that will ultimately matter more.

In Harris v. Quinn, the court majority signaled that it’s almost ready to set public employees free from conscription into the forces of unionism. It just needs a case with bona fide public employees who actually belong to a union, while the home health care workers in Harris aren’t and don’t.

The majority opinion, again by Alito, barely mentions those workers in its first twenty pages. Alito focuses instead on why a 37-year-old Supreme Court decision called Abood v. Detroit Board of Education, which first allowed public unions to collect dues from non-members, was, technically speaking, about as persuasive as a tweet. Make that a tweet and a half, as the Abood court relied on a precedent that waved off the First Amendment concerns implicated by compulsory unionism in the space of a single, 205-character sentence: "On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar."

The 1956 court that set the precedent couldn’t have imagined that public unions would come to replace the corrupt political machines that reformers had spent the last half-century trying to eliminate. Alito points out that “because the lawsuit had been filed shortly after the collective-bargaining agreement was approved, the record contained no evidence that the union had actually engaged in political or ideological activities.”

Five years later, the court gave a little more thought to the question of involuntary association, and decided that even compulsory bar membership for attorneys went too far. Justice William O. Douglas, the swing vote in both cases, wrote, “Once we approve this measure, we sanction a device where men and women in almost any profession or calling can be at least partially regimented behind causes which they oppose…we practically give carte blanche to any legislature to put at least professional people into goose-stepping brigades. Those brigades are not compatible with the First Amendment.”

The Abood court simply forgot about those First Amendment protections, in Alito’s view, instead focusing on the unions’ practical need to prevent “nonmembers from free-riding on the union’s efforts,” as though that were a constitutional question.

The image of goose-stepping brigades might seem a cliché in the present day, so let’s put the constitutional principle that Justice Douglas identified in modern terms: nobody should be compelled to associate with a union that makes employee termination so difficult that rather than firing a hellbound degenerate like Mark Berndt, a teacher who spoon-fed his own semen to blindfolded third-graders, a school district would quietly pay him $40,000 to retire.

The California Teachers Association is just such a villain, and ten teachers who want nothing to do with the union have filed a lawsuit with some high-profile backers that many observers believe is headed straight for the Supreme Court docket.

The unions derive much of their political power from their undeserved grip on government worker pay. They’ve abused that power to run up more than $4 trillion in unfunded pension benefits the rest of us now owe them. Unless the court fixes a 37-year-old mistake, state and local governments have little chance of fixing their own, and the debts will cause widespread municipal bankruptcy, busted pension systems, and abandoned pensioners.

That prospect, Justice Elena Kagan would like you to know, is none of your concern. In her dissenting opinion for the minority, Kagan writes that “this Court has never come close to holding that any matter of public employment affecting public spending (which is to say most such matters) becomes for that reason alone an issue of public concern.”

She scoffs at those public employees who don’t want to take part in the looting or associate with the Berndt defense league, and refuses to accept their rejection of unionism as a constitutionally protected political act: “That view of the First Amendment interests at stake blinks decades’ worth of this Court’s precedent,” she writes (and yes, she really used the word blink that way). “Our decisions…teach that internal workplace speech about public employees’ wages, benefits, and such — that is, the prosaic stuff of collective bargaining — does not become speech of ‘public concern’ just because those employment terms may have broader consequence.”

Those consequences may be broad enough to swallow entire cities and state economies, but we’re supposed to ignore them, because that’s what the court has taught us?

Blink that.

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About the Author

Jon Cassidy is the Texas bureau chief for Watchdog.org.