The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court’s five ‘black-robed rulers’

The Supreme Court ruled against public unions that required non-member workers to pay fees June 27. Here's what you need to know. (Video: Victoria Walker/The Washington Post)

The 5-to-4 decision by the Supreme Court in Janus v. AFSCME is another stain on the court’s spotted history. That June 27 ruling culminates the decades-long corporate assault on workers with a shameless display of right-wing judicial lawlessness.

In the decision, the court’s five conservative justices invoke the First Amendment to prohibit unions representing public employees from collecting an agency fee for the cost of bargaining on behalf of workers who benefit from that bargaining but choose not to join the union. In doing so, they trampled the will of elected state legislatures and 40 years of precedent. Contrary to the court’s claim, the case has nothing to do with individual workers’ free speech. Every worker is free to speak or organize as they choose. The court isn’t protecting speech; it is protecting free riders, allowing workers to benefit from collective bargaining and representation without paying a fair share for its costs.

The ruling doesn’t empower workers; it weakens their voice and constricts their ability to organize at the workplace, in communities and in the public arena. This doesn’t protect speech; it just undermines public-employee unions. As the Intercept’s Lee Fang and Nick Surgey report, a gaggle of right-wing think tanks — coordinated by the State Policy Network and supported by the Koch brothers and a passel of big corporations — is gearing up a 22-state strategy to encourage workers to withhold paying their fees, in hopes of weakening and even decertifying unions.

A State Policy Network letter to donors make the goal clear. Unions are central to the battles for civil rights, economic rights, public education and corporate accountability. Their goal is to cripple unions as much as possible. As Mackinac Center President Joseph G. Lehman writes, “Imagine the change we will see in political debates over public education, taxes, social welfare support and other issues if the fear of union backlash is cut by two-thirds.”

The Supreme Court’s conservative majority has blatantly joined the corporate assault on workers and on our democracy itself. In Citizens United, it opened the floodgates to corporate money in politics, somehow granting First Amendment rights to corporations that are a creation of the state designed to limit investors’ liability. In Shelby County v. Holder, it gutted the Voting Rights Act, ignoring the virtually unanimous support of the Senate in renewing it. In the recent Abbott case, the five right-wing judges overturned a Texas district court decision invalidating a Texas districting scheme designed to harm the voting power of minorities.

Now in Janus, the gang of five tramples legislative decisions to cripple public employee unions. In her dissent, Justice Elena Kagan denounced the “weaponizing” of the First Amendment to empower corporations over workers, which the court has used to limit regulation of tobacco, drug and gun companies and to protect backdoor limits on women’s right to choose. These are, as Kagan announced, “black-robed rulers overriding citizens’ choices,” a judicial lawlessness that surely will meet with popular resistance.

Unions are essential to a democracy. Traditional conservatives would have embraced them as mediating institutions, standing between the state and the individual. They teach their members democratic practices, contribute to communities and strengthen citizens’ voices in the public square. Economists have understood them as essential “countervailing power” to the corporate executive suite, ensuring that workers gain a fair share of the profits and productivity that they help to generate. Not surprisingly, as unions have grown weaker, wages have stagnated and inequality has soared.

Under unrelenting attack, unions will need to turn from traditional workplace representation to militant organizing. The fast-food workers’ fight for a $15 minimum wage and the extraordinary teacher strikes across the country provide examples. In both, employer resistance forced a resort to mass mobilization that struck a public chord. In the wake of Janus, workers will have to be more creatively disruptive, not less.

At the same time, Democrats and progressives must wake up. Janus is part of a multifaceted, unrelenting assault on unions to weaken a central pillar of progressive reform. For too long, centrist-leaning Democrats have dismissed unions as vestigial, part of the past. Presidents Jimmy Carter, Bill Clinton and Barack Obama all failed to use their muscle to get Democratic majorities to pass vitally needed labor law reform. Now as unions grow weaker, Democrats need to understand the stakes.

Progressive activists would be wise to demand that every Democratic candidate for elected office — at the local, state and national level — make empowering workers a central part of his or her platform. They should demand support for measures that will make it easier for workers to organize and crack down on labor law violations. Companies that violate basic worker rights should be penalized in public procurement decisions.

At the same time, progressives need to expose the reality that the right-wing gang of five in the Supreme Court is trampling the will of the people and overturning precedents to serve the interests of the plutocrats and the right. These “black-robed rulers” are legislating from the bench, scorning even an effort to find common ground with their own colleagues. In a time of deep polarization, the lawless majority of the court has chosen to side with the powerful few against the vast majority. That cannot be allowed to stand.

Read more from Katrina vanden Heuvel’s archive or follow her on Twitter.

Read more:

Mark Janus: Why I took my case over forced union dues to the Supreme Court

George F. Will: The ‘Janus’ ruling is a welcome blow to coerced speech

Elizabeth Bruenig: Workers are free at last — to sink

Megan McArdle: Why you should care about the Supreme Court’s Janus decision