SCOTUS decision: Free speech vs. public sector unions

NICK EICHER, HOST: It’s Thursday, the 28th of June, 2018.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Well, the biggest news out of the Supreme Court yesterday came just after the court recessed for the summer. Justice Anthony Kennedy announced his retirement, effective July 31st.

President Trump now has the opportunity to seat a second justice onto the high court, likely pushing the court to the right for years to come.

EICHER: Justice Kennedy turns 82 next month. He came to the high court 30 years ago, an appointee of President Ronald Reagan. He was actually the third choice to fill the seat vacated by retiring Justice Lewis Powell.

Reagan’s first two nominees were Robert Bork and Douglas Ginsburg. The Senate rejected Bork followed a contentious confirmation hearing, and Ginsburg withdrew when it came out that he’d smoked pot as an adult.

REICHARD: Kennedy was often the decisive vote in 5-to-4 rulings. This last term he sided with conservatives on all 14 of the split decisions. He upheld President Trump’s travel restrictions, upheld the Colorado cake baker’s right to respect for his religious beliefs, upheld the right of states to keep accurate voter registration lists.

But Kennedy’s 30-year legacy on the court is complex.

He upheld affirmative action in college admissions. He emphasized the rights of criminal defendants. He upheld abortion as a fundamental right in a 1992 case many pro-lifers hoped would overturn Roe v. Wade.

Perhaps most notable were Kennedy’s marriage opinions. His vote was pivotal to dismantle the definition of marriage as one man and one woman. One law professor dubbed Kennedy the “gay justice” after a series of rulings in which Kennedy created a majority granting gay rights under a new doctrine of “dignity.”

It was the last case—Obergefell v. Hodges—that led dissenting Justice Antonin Scalia to ridicule the majority ruling.

The late Justice Scalia said the majority ruling had “descended from disciplined legal reasoning … in an opinion lacking even a thin veneer of law … straining to be memorable.”

As for the coming Trump nomination to replace Kennedy, the president vowed to act fast:

TRUMP: That will begin immediately. And hopefully we’re going to pick somebody who will be as outstanding. So I just want to thank Justice Kennedy for the years of tremendous service. He’s a very spectacular man.

EICHER: Kennedy’s announcement came on the heels of a blockbuster ruling. In another 5-4 decision, the Supreme Court upheld free-speech rights while dealing a blow to public-sector unions. The court struck down a 41-year-old precedent, and held that nonunion public-sector employees cannot be forced to pay union fees.

Justice Samuel Alito wrote for the majority. He acknowledged the disruption unions will now face from having less money flowing into them, but that the greater First Amendment rights must prevail.

Quoting now from the opinion: “Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor any other attempt be made to collect such a payment unless the employee affirmatively consents to pay.”

REICHARD: The old ruling from 1977 aimed to prevent people from using union services without paying into it. Back then, that concern trumped First Amendment rights.

It was Justice Kennedy who delivered the line during oral arguments in February that caused union supporters grief. Listen as he grills the union lawyer:

KENNEDY: Well do you think that this case affects the political influence of the unions?

FREDERICK: No…

KENNEDY: I’m asking you whether or not in your view if you do not prevail in this case the unions will have less political influence. Yes or no?

FREDERICK: Yes, they will have less political influence.

KENNEDY: Isn’t that the end of this case?

The employee in this case is Mark Janus, a child-support specialist with the Illinois Department of Healthcare and Family Services. He argued the law forced him to hand over part of his paycheck so the union could spend the money on political causes he did not support.

In the four-justice dissent, Justice Elena Kagan wrote, quote—“at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”

But at least for now, the choice of citizens in the public sector who don’t want to subsidize union politics are breathing a sigh of relief.

(AP Photo/J. Scott Applewhite) In this April 4, 2017 photo, the Supreme Court Building is seen in Washington. 

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