The Washington PostDemocracy Dies in Darkness

Opinion What Republicans won’t tell their voters about the Supreme Court

(AP Photo/Jacquelyn Martin)

Today, the Supreme Court will be hearing oral arguments in Friedrichs v. California Teachers Association, one of the most important cases they’ll decide this year. The plaintiffs in the case are teachers who don’t want to have to pay fees to the union that bargains on their behalf.

But in truth, this case is around 10 percent about teachers unions in particular and 90 percent about the larger conservative effort to destroy collective bargaining and union representation as features of the American workplace.

With the possible exception of Chris Christie (whose venomous loathing for teachers unions often manifests itself through his skillful governing technique of yelling at teachers), the Republicans running for president are unlikely to bring this case up a lot when they talk about the Supreme Court on the campaign trail. It isn’t that they don’t all agree on what the outcome should be, because they do. But they also know that their current audience — the Republican Party’s grassroots base — is a lot more animated by discussion of the Court’s rulings on social issues like abortion and gay marriage. It’s easy for a candidate to get those voters mad by saying (explicitly or implicitly) that when they’re president, their first priority will be finding justices who’ll overturn Roe v. Wade.

But it’s cases like Friedrichs where Republican-appointed Supreme Court justices show their truest colors. Republican voters may be mad about gay marriage, but when the interests of the economic elite are at stake, the Court’s conservatives come through for the GOP every time.

Briefly, here’s what this case is about. The plaintiffs in Friedrichs say that by paying “agency fees” to the union, their free speech rights are being violated because they’re being forced to support an organization they might disagree with. Though those contributions don’t support any of the union’s political activities, the plaintiffs argue that even the union’s efforts to get better pay and benefits for teachers are political. The union counters that eliminating the payments creates a free rider problem: the teachers can reap the rewards of the union negotiating on their behalf without contributing.

Now for the political context that makes this case so important. The plaintiffs are being funded by a veritable who’s-who of well-heeled conservative foundations and interest groups. The point of cases like this one is to undermine the power of the union; if it can’t collect agency fees, then not only will it lose money directly, but the incentive to free-ride will be strong, and over time it will have fewer and fewer members. Labor unions support Democrats, so conservatives can kill two birds with one stone: hurt the Democratic Party by hampering one of their core bases of support, and create workplaces where less power resides with workers and more with management.

The public sector is the last substantially unionized place in America. While less than seven percent of private sector workers belong to a union, the figure for public sector workers is over 35 percent. With a sweeping ruling in this case, public sector unions could be dealt a crippling blow.

And while Republican voters pull out their hair at Supreme Court rulings on things like gay marriage and call John Roberts a traitor for upholding most of the Affordable Care Act, they probably don’t realize how consistent the Roberts Court has been in its service to America’s corporations.

The Obama years have seen a transformation in conservatives’ views of the Supreme Court. According to data from the Pew Research Center, in 2008, 80 percent of Republicans said they had a favorable view of the Court; by 2015, the figure had fallen to 33 percent. Fully 68 percent of conservative Republicans described the Court as “liberal.” Few would disagree that these opinions are driven in large part, if not almost completely, by a few of the most high-profile cases, particularly those on the ACA and same-sex marriage.

But a narrow focus on those cases where one or two of the conservative justices joined with the four liberals obscures something else: when it comes to the interests of the economic elite, the five conservatives who make up the Court’s majority are always there to stand with Republicans. Social conservatives may not like John Roberts, but the people who pay the RNC’s bills couldn’t be happier with him, nor even with Anthony Kennedy, who isn’t such a swing vote when there’s a corporate plaintiff involved. Yet when a Republican candidate tells an audience in Iowa that he’ll make sure to appoint only justices who’ll “uphold the Constitution” (i.e. rule however Republicans want), he knows that just about everyone in the room is thinking about social issues, not the laws that govern the workplace.

It won’t be hard for Republican candidates to argue that the unanimous Republican position in Friedrichs, as on all labor union cases, is just about freedom. So it isn’t that they’re afraid to talk about it. But the truth is that the people really served by these cases are that Republican “establishment” the base claims to hate so much. They’re the ones who desperately want a union-free future, where workers can’t bargain collectively and have to take whatever they’re offered by their bosses.

So there’s an opening for Democrats to make a strong argument about not just this case but the larger attack on worker power of which it’s a part. At a time when populist appeals are potent and the economic discussion has expanded to include questions like overtime pay and family leave, there aren’t that many voters who look at the state of the American workplace today and say, “You know, workers really have it too good when it comes to things like wages, benefits, and working conditions.”