Time machines aren’t real. But even before Justice Anthony M. Kennedy announced his retirement Wednesday afternoon, the Supreme Court was well on its way to returning the United States to the Gilded Age, a time of soaring income and wealth inequality where workers lacked basic rights, minorities were often prevented from voting and monopolies ruled the land.
On Wednesday, in the final day of their session, they came for the public-sector labor unions. In 5-to-4 decision – hello, Justice Neil M. Gorsuch! – the justices voted to allow government workers who are represented by a union to skip out on paying a fair-share or agency fee, which covers the cost of collective bargaining if they choose not to be represented by a union. The majority argued that making the payment mandatory is a violation of the First Amendment’s guarantee of free speech because it compels “them to subsidize private speech on matters of substantial private concern.”
Give me a break. This is the culmination of a multiyear effort by the right to kneecap public-sector unions representing everyone from teachers to nurses, a vital part of not just the Democratic Party base but also a strong middle-class society.
Union membership has been on the decline in the United States for decades. Many economic analysts argue that’s a major factor in the United States’ growing income and wealth inequality. Unions don’t just allow workers to group together to negotiate with employers; they also financially buttress historically disadvantaged groups. The gender wage gap for union members is about half that of those who are not represented. African Americans are more likely to be union members than whites and are also more likely to be employed in the public sector.
So why would someone eligible choose to not join a union? Perhaps they are philosophically opposed to unions. Or perhaps they are living under immense financial pressure, like so many Americans in 2018, and figure they can benefit from the union without paying dues. Fair-share fees removes the incentive for doing this and keeps unions on a secure fiscal footing — too many individual free riders, and the union won’t be able to finance itself.
There’s valid reason for unions’ concern. According to Bloomberg, the American Federation of State, County and Municipal Employees believes barely more than a third of their membership is guaranteed to continue paying dues now that they can choose not to do so. The Supreme Court almost certainly upped the ante here too by requiring that the fee covering collective bargaining be opt-in, not opt-out, meaning people need to actively agree to the money being removed from their paycheck. Good luck with that! There’s a reason “penny wise, pound foolish” is a cliche.
This case has reeked of bad faith from start to finish. It originated with Republican Illinois Gov. Bruce Rauner, a venture capitalist with a net worth in the hundreds of millions of dollars. When a court ruled Rauner, who doesn’t belong to a union, lacked the standing to sue, another plaintiff — Mark Janus, a child support specialist employed by the Illinois Department of Healthcare and Family Services — was quickly found. If Senate Republicans hadn’t refused to vote on on President Barack Obama’s nomination of Merrick Garland to the Supreme Court, this ruling itself would have almost certainly gone the other way. And the entire shebang has been funded by a number of right-wing activist groups, including the National Right to Work Legal Defense Foundation and the Center for Individual Rights. Both receive a percentage of their funding from Donors Trust, a donor-advised fund backed by the Koch brothers. And of course they would! According to Politico, public-service unions give an estimated 6 percent of the funds spent by Democrats running for federal office, and that number does not take into account such activities as phone banking, union mailings to their membership and other get-out-the-vote activities. They are almost certainly going to have less money for that going forward.
That brings us back to the most recent news — the retirement of Kennedy. The sudden opening allows Donald Trump — the man who is president of the United States despite the fact that more voters actually cast a ballot for Hillary Clinton — to nominate yet another justice for the court. This nominee, should they be approved, will almost certainly take the court and the country in an even more conservative direction, one that can last for decades. Kennedy, compared with his conservative counterparts, is capable of occasionally bending left on matters such as abortion and gay rights. The odds that Trump replaces him with someone who will do the same are just about nil.
The fight will almost certainly dominate the November election. As Sean McElwee pointed out earlier this week in the Nation, a main reason the Supreme Court is so hidebound is that Republicans have been much quicker to politicize the courts while Democrats — both voters and politicians — continued to see the court as above politics. That belief, as well-meaning as it is, has ultimately led to a one-sided disarmament. Don’t expect that to continue.
The results are staring us in the face. Over just the past session, the Supreme Court has said companies can force employees to sign mandatory arbitration agreements as a condition of employment, made it easier for political forces to ensure minority voters are underrepresented due to gerrymandered districts, endorsed a draconian voter-purge law that just coincidentally affects minorities and the young more than white people and the old, made it harder to go after business monopolies and, earlier this week, upheld a discriminatory travel ban that affected people attempting to enter the United States from a number of predominantly Muslim countries.
In the United States, we say we honor individual rights, but, in fact, it can seem our government does everything possible to make the vast majority of people’s lives harder and more difficult, while easing the path for big business and the wealthy. Today the Supreme Court took several steps forward in that quest. Now the president is going to get the chance to cement those attitudes into the law of the land for decades into the future. That Wednesday’s decision is almost certainly on the wrong side of history is small comfort. We will be living with it and quite possibly much worse for a long time to come.