The Roberts Court's five Republican-appointed justices invented a new rule that threatens to greatly weaken public employee unions in yesterday's Knox v. SEIU decision. Reaching out to decide an issue that the parties to the case never argued, these justices instead engaged in "radical policy-making" using an argument drawn from a friend of the court brief submitted by the Cato Institute and a coalition of other right-wing organizations. As the cheerleading for the decision by right-wing institutions and blogs makes clear, the decision is much more likely to be the first battle in a new legal war on public employee rights than a mere reworking of technical legal rules.
In the case, the five conservative justices turned precedent on its head to severely limit the ability of public employee unions to spend fees from employees they represent to fight anti-worker political battles. The limits adopted by the conservative justices went beyond what even the parties in the case had requested.
The Knox decision is evidence that the Court's Republican-appointed conservative majority has decided to inject the Court into the national debate on workers' rights, according to both Justice Stephen Breyer, who dissented in the case, and Steven Hayward of the right-wing Powerline blog. Justice Breyer noted that states have taken varied approaches to nonmember rights in union workplaces, and that the political debate on this subject, especially with respect to public employees, is "intense." Now, he observed, the conservative justices have not only entered the debate, but apparently "decide[d] that the Constitution resolves it." Powerline's Hayward agrees, writing that the Knox decision's effect will be "similar to the Scott Walker reforms in Wisconsin that have devastated public employee union political capacity there. Step by step."
Constitutional scholar Garrett Epps calls Knox "the Court's Scott Walker Moment."
Epps summarizes the issues in Knox as follows:
The case concerned the rules by which unions can assess "agency fees" payable by non-members who benefit from the unions' collective bargaining efforts. Though public employees can't be forced to join unions, it is legal for governments to contract with unions like SEIU to provide representation to all employees in a bargaining unit. Under the contract, non-members can be charged an "agency fee" that reimburses the union for the costs of negotiating contracts and handling grievances.
However, under prior precedent, non-members can't be forced to pay for various political activities by the union. This, the Court has held, violates the First Amendment rule against "compelled speech."
Under the Supreme Court's precedents, unions have been able to comply with this rule by permitting nonmembers to opt out of political activities. In 2005, an SEIU local in California told the employees it represented that it was instituting a special fee for political activities. It did not notify those who were not members of the union that they could opt out of the increase. Justices Sotomayor and Ginsburg agreed with the five conservative justices that because of a lack of sufficient opportunity to opt out, the union's actions did not satisfy the Court's requirements.
The five conservative justices, however, went vastly farther, reaching beyond the dispute between the parties to create a new policy. They announced a new rule that stood the old one on its head: in their view, the First Amendment requires that public-sector unions establishing a special fee must convince nonmembers to opt in rather than permit them to opt out. As Justice Sotomayor argued in her concurrence, the nonmember employees in the case never made this argument, and so SEIU never had a chance to respond to it. Supreme Court commentator Scott Lemieux labeled the majority's actions "radical policy-making."
If the employees challenging the fee didn't make the opt-in argument, from where did it come? One likely source is a friend of the court brief filed by the Cato Institute and three other right-wing legal organizations, which argued that the Court should adopt an opt-in rule.
Cato's Trevor Burrus agrees with Justice Breyer that the conservative justices are not done putting their stamp on the national debate on collective bargaining and public workers. He writes:
Justice Breyer is correct that the majority opinion offers few reasons why opting-in should not be required for all union political dues taken from nonmembers, not just special assessments. In making the strong argument that forced speech without affirmative consent is a First Amendment evil, Justice Alito leaves little room for even the existing opt-out system. Alito and the justices who joined his opinion seem very friendly to the idea that all union political dues for nonmembers require opt-in procedures. Hopefully that case will hit the Court soon.
And when it does, chances are that Cato will file a brief suggesting a new Constitutional principle that requires a result against the union, and teeing up the next case after that, just as it did in Knox. As Steven Hayward wrote on Powerline: step by step.