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“An Assault On Collective Bargaining”: The Common Thread Of Supreme Court Decisions, “You’re On Your Own”

Although the Supreme Court’s decision in the Hobby Lobby case is getting most of the attention today, the other major case the justices decided, regarding public-sector unions, could prove to be even more significant. And in both cases, the court had a common message: You’re on your own.

That may not be how the union decision, Harris v. Quinn, looks on first glance. Indeed, the conservative majority cast it as a conflict between the freedom of individual workers and the interests of a union, and they sided with the workers. But make no mistake: This case is one part of a larger assault on collective bargaining, and the majority even hinted in its decision that there would be more to come. So often, cases such as these come down to questions of power: who has it, who doesn’t and on whose behalf should it be exercised. And this court’s majority knows where power belongs.

Harris v. Quinn was a case about whether home health-care workers in Illinois, who are paid by Medicaid, would have to pay some dues to the union that negotiates salaries and benefits on their behalf even if they choose not to join. If they were allowed to become free riders, getting the benefits of union representation without paying for it, the union’s position becomes far less sustainable. But the court held that the workers’ free speech rights were violated by the requirement, since the union might say things with their money that they disagreed with (though none of those dues go to political activity, and they aren’t required to actually join the union if they don’t wish to). The court said that it could strike down the law because these workers aren’t state employees even though they’re paid by Medicaid; it also described the 1977 case that allowed the requirement on state employees as having “questionable foundations,” a signal that the court may be gearing up to overturn that case and deal a fatal blow to all public-sector unions.

It’s no coincidence that the public sector is the core of what remains of union power in the United States today. And taken together, today’s two decisions mark yet another step in a direction this court has long been moving: toward more power in corporate hands, and less for ordinary people.

One does begin to wonder where the court sees any limits on corporate power at all. In Citizens United, the court ruled that corporations have free speech rights that enable them to spend all they want to influence the political process. In Hobby Lobby, the court ruled that corporations have religious rights that trump the rights of their employees and allow the corporation to pick which laws it would like to follow and which it would like to ignore. The decision extends the corporation’s control over its employees’ lives beyond what happens when they’re working, beyond even things they do that could affect their work, to a purely private arena that touches on their employment only because that’s where they’re getting their health insurance.

And as Harris v. Quinn shows, the court’s conservatives become concerned about workers and their rights only when some subset of workers is seeking to undermine unions, which exist to equalize the power imbalance between employers and employees.

In other words, both these cases are about power, and this Supreme Court is determined that it be moved more and more into the hands of those who already have it. And you can bet there’s more to come.


By: Paul Waldman, The Plum Line, The Washington Post, June 30, 2014

July 7, 2014 Posted by | Collective Bargaining, Public Sector Unions, Supreme Court | , , , , , | Leave a comment

“John Roberts, Abysmal Failure”: How His Court Was Disgraced By Corporations And Theocrats

It wasn’t quite March 6, 1857, or Dec. 12, 2000, but make no mistake: June 30, 2014, was not a good day for the U.S. Supreme Court. Not simply because it saw the court once again unveil two major decisions decided by a slim majority along partisan lines, but because the argument offered by the majority in the more controversial and closely followed of the two decisions was so conspicuously unprincipled that it will almost surely further erode public confidence in the nation’s highest court. As a Gallup poll also released Monday morning showed, it was already low; I bet it’s about to sink even lower.

In order to understand why Monday was such an important — and unfortunate — day for one of the United States’ most hallowed institutions, it’s necessary to revisit something Chief Justice John Roberts said in an interview way back in 2006. After crediting John Marshall’s legendary diplomatic skills for maintaining the unity and establishing the credibility of the court during its crucial early years, Roberts argued that, after 30-odd years of discord and squabbling, the Supreme Court was “ripe for a similar refocus on functioning as an institution” rather than as a collection of individuals with their separate politics, prejudices and philosophies. If the court failed to come together under his leadership, Roberts warned, it would “lose its credibility and legitimacy as an institution.”

Remember now, this was in 2006, when 5-4 splits on major, hot-button decisions was not yet the norm. This was before Parents Involved in Community Schools v. Seattle School District No. 1, before National Federation of Independent Business v. Sebelius, and before Citizens United v. Federal Election Commission, that ultimate embodiment of the partisan rancor and ideological polarization that’s so defined the Roberts-era court. It’s weird to think of the era of President Bush, Vice President Cheney and Senate Majority Leader Bill Frist as the good old days, but when it comes to the Supreme Court in the modern era, it more or less was.

Cut to today, and it’s hard to conclude that John Roberts is, by the standards he established in 2006, anything more than an abysmal failure. More than at any time since perhaps the Lochner Era, the court is not only seen as a political actor, but is considered a particularly ideological and combative one at that. Far from ushering in an era of good feelings, Roberts has presided over a court that is at war with itself, one in which justices like Antonin Scalia on the right, or Ruth Bader Ginsburg on the left, have become partisan heroes whose writings are studied not for their analytical insight but rather to see if they offer any good lines for use as weapons in the Internet’s endless partisan wars. And the public has noticed: In 2005, Gallup asked Americans how much confidence they had in the Supreme Court: 41 percent said “a great deal” or “quite a lot.” That number today? A paltry 30 percent. 

It’s in this context that Monday’s two big rulings — Harris v. Quinn and Burwell v. Hobby Lobby Stores, Inc. — are most properly understood. While it’s true that many of the decisions handed down by the court this summer were unanimous, that harmony was never going to be enough to counterbalance the effects of the court’s two most closely watched decisions coming down, once again, as 5-4 splits. For one thing, the unanimous rulings Roberts engineered were far more internally divided than the 9-0 end results would lead you to think. For another, the public’s ability to follow or remember Supreme Court rulings is rather limited, which means that when it comes to public perception of the court, it’s the big deal decisions like Citizens United or Hobby Lobby that really count.

So when Justice Alito, who was the chief author of both of this term’s blockbuster decisions, relies on arguments as transparently political as those he wielded to decide Harris and Hobby Lobby, it makes Roberts’ work toward improving the court’s image that much harder. When Alito argues, as he does in Harris, that home-care workers paid by the state are not real public employees — not because of any intuitive distinction between your mother’s home-nurse and her bus driver, but because doing so is one of the easiest ways for him to rule against unions without taking the politically momentous step of nuking them entirely — it hurts the court. And when Alito echoes Bush v. Gore, as he does in Hobby Lobby, and states that the logic of the majority should not apply to medical services other than birth control — like vaccinations or blood transfusions — it hurts the court.

When John Roberts first assumed control of the Supreme Court, he spoke like a man who wanted to prove that the institution had earned its ostensible reputation as floating above politics and seeing beyond the tribal emotions of the culture war. But as the decisions on Monday showed, the reality is that the Roberts court is as political as ever. In Roberts’ court, it’s not abstract ideas of justice and law and republican government that win the day — it’s corporations, religious conservatives, employers and anyone who worries first and foremost about the interests of the powerful and the elite. Unless John Roberts’ goals were other than those he outlined in 2006, Monday’s decisions can only be interpreted as yet another saddening defeat.


By: Elias Isquith, Salon, June 30, 2014


July 2, 2014 Posted by | John Roberts, Supreme Court | , , , , | Leave a comment

“A Revival Of 20th Century Lochner”: The Roberts Court Thinks Corporations Have More Rights Than You Do

The Supreme Court of the mid-twentieth century led a First Amendment revolution, turning a rarely enforced constitutional provision into the crown jewel of our Bill of Rights. While these rulings protected the speech of all Americans, they most frequently came in cases involving disfavored or even despised litigants, from Jehovah’s Witnesses to Nazi sympathizers. The Roberts Court is leading a free speech revolution of its own, but this time for the benefit of corporations and the wealthy.

This revolution is unfolding across a wide range of First Amendment provisions and doctrines, from Citizens United v. FEC, which protects political speech by corporations to Sorrell v. IMS, which makes it easier for corporations to challenge laws that regulate commercial speech. Today’s bitterly divided rulings in Burwell v. Hobby Lobby and Harris v. Quinn continue this trend by turning the First Amendment’s protection for the free exercise of religion and freedom of association into a sword to free corporations and other powerful interests from government regulation. More than the Court’s earlier First Amendment revolution, this series of deeply divided rulings resembles the aggressive, divisive, and now overturned rulings of the Lochner era, named after the infamous 1905 case Lochner v. New York, one of a number of cases in which the Supreme Court of the early twentieth century that struck down laws designed to prevent the exploitation of workers. During this era, the Supreme Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation. Today, we are seeing a revival of Lochner in the name of protecting free speech and free exercise of religion.

This story, of course, begins in earnest with the 2010 ruling in Citizens United v. FEC, the case that, perhaps more than any other, defines the Roberts Court. There the Court’s five conservatives united to hold that the Constitution gives corporations the right to spend unlimited sums of money on elections. Corporations cannot vote in elections, run for office, or serve as elected officials, but the Court nevertheless ruled that they can overwhelm the political process by using money generated by special privileges that corporations alone possess. In 2011, the Court continued this corporate-friendly trend in Sorrell v. IMS, holding that forms of market research, such as data mining, are “speech” protected by the First Amendment.

This term, Chief Justice Roberts has opened new fronts in his First Amendment revolution. Prior to 2014, the Supreme Court had never held that a secular, for-profit corporation is entitled to protections for the free exercise of religion and had never struck down a federal law limiting campaign contributions. This year, the conservative Justices did both. In both cases, the Court’s conservative majority built off of Citizens United. In Hobby Lobby, in an opinion written by Justice Samuel Alito, the Court held that closely-held, secular, for-profit corporations were entitled to the guarantee of the free exercise of religion, treating corporations simply as the artificial embodiment of its owner or shareholders. Dismissing the fact that corporations cannot pray and have never, in more than two centuries, been conferred with rights of conscience and human dignity, the Court’s conservative bloc concluded that secular for-profit corporations are entitled to a religious exemption from the Affordable Care Act’s requirement that employer-sponsored health insurance plans cover the full range of FDA-approved contraceptives. The Court’s opinionthe first in history to require a religious exemption from generally-applicable regulation be given to a commercial enterpriseexalts the rights of corporations over those of individuals, giving corporations the right to impose their owners’ religious beliefs and extinguish the rights of their employees. As Justice Ruth Bader Ginsburg detailed in a powerful dissenting opinion, the majority abandoned constitutional principles and precedent and empowered commercial enterprises to “deny legions of women who do not hold their employees’ beliefs access to contraceptive coverage.”

While framed as a narrow minimalist ruling, Justice Alito’s opinion in Hobby Lobby is anything but. First, its central holding strongly suggests that all corporationsnot merely those like Hobby Lobby that are closely-heldare entitled to demand religious exemptions from generally-applicable business regulation. Second, its reasoning invites an avalanche of new claims by corporations and others for religious exemptions, making it very difficult for the government to defeat claims for religious exemptions, even when those exemptions extinguish the rights of employees. The Court’s opinion, as Justice Ginsburg explained, opens the floodgates for a number of “me too” religious objections by other companies on matters ranging from anti-discrimination law to other medical procedures such as blood transfusions or vaccinations.

Earlier this term, in McCutcheon v. FEC, the Court’s conservatives continued their assault on the nation’s campaign finance laws, striking down the federal aggregate limit that permitted individuals to contribute up to $123,000 to candidates per election cycle and opening the floodgates to the wealthiest Americans to contribute millions of dollars at a time to elect candidates to do their bidding. As in Citizens United, the conservative majority turned a blind eye both to constitutional principle and reality, treating the $123,000 contribution limit as an especially severe burden on freedom of speech and artificially limiting the government interest in ensuring electoral integrity to cases of bribery. To the Founders, preventing corruption of the government was at the core of the Constitution, necessary to ensure, as Madison put it, that government was “dependent on the people alone” and that our system of representative democracy remained “not [for] the rich more than the poor.” Rather than grappling with the government’s authority to ensure electoral integrityan interest deeply rooted in the Constitution’s text and historyChief Justice Roberts caricatured it. While campaign contribution limits still remain, it seems only a matter of time before those too are invalidated by the Roberts’ conservative majority.

Harris, too, represented a fundamental reinterpretation of the First Amendment, striking down an Illinois law that allowed public-sector unions for home health care workers to collect fees from non-union workers to cover the costs of a union’s bargaining activities. In doing so, Justice Alito dismissed a long line of precedents going back nearly 40 years that had upheld precisely these kinds of arrangements, dealing a serious blow to organized labor. In past cases, the Roberts Court has upheld government regulation of employee speech, giving the government broad leeway in choosing how to run a workplace. But, in a stark about face, Justice Samuel Alito’s opinion ratcheted up the First Amendment rights of anti-union employees, powerfully illustrating Adam Liptak’s observation that in the Roberts Court, “[f]ree speech often means speech I agree with.” In a blistering dissent, Justice Elena Kagan argued that the Court’s conservative majority was perverting established First Amendment law, effectively creating a special set of First Amendment principles only for union fee cases.

Justice Alito’s opinion in Harris invites anti-union activists to file a host of new lawsuits aimed at state laws that allow public-sector unions to collect the costs of collective bargaining from union and non-union member alike. Indeed, much of the Harris opinion is devoted to showing why the past precedent in this area is wrong and ought to be overruled. These precedents survive, if at all, by a thread.

Chief Justice John Roberts is known for playing the long game, issuing decisions that, quietly but decisively, move the law to the right. His greatest successes in this area have come in campaign finance cases, where in just a decade, the Court’s opinions have decimated campaign finance law. Today’s decisions in Hobby Lobby and Harris open new avenues for corporate interests looking to attack regulation, and in years to come we are certain to see a host of new challenges to business regulation, all in the name of free speech or free exercise. In the Roberts Court, the First Amendment is a powerful weapon, not for the street corner speaker, but for corporations and wealthy seeking to squelch regulation.


By: David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at Constitutional Accountability Center; The New Republic, July 1, 2014

July 2, 2014 Posted by | Citizens United, Hobby Lobby, John Roberts, SCOTUS | , , , , , , | 1 Comment

“Rendering Unions Toothless: Supreme Court Aligns Against The Have-Nots

Among the causes most frequently cited for the dizzying rise in American inequality in recent decades — globalization, technology, de-unionization — one culprit is generally left off the list: the Supreme Court. But the justices (more precisely, the conservative justices) must be given their due. In cases ranging from Buckley v. Valeo in 1976 to Citizens United v. Federal Election Commission in 2010, they have greatly increased the wealthy’s sway over elections — which, in turn, has led to public policies that have reduced taxes on the rich, curtailed regulation of Wall Street and kept workers from forming unions.

On Tuesday, the justices were presented with a golden opportunity to further increase inequality. The court heard arguments in Harris v. Quinn , a case testing whether home-care providers who work under a union contract with the state of Illinois can avoid paying dues that support the union’s collective-bargaining work. (Under the law, they already can decline to pay the share of dues that goes to the union’s political work.)

Home-care workers are hired by aging or disabled individuals and their families, some of whom are eligible to have the expense picked up by Medicaid. That arrangement means the home-care workers’ pay levels are set by the states — making both the state and the individual a worker’s employer of record.

Over the past two decades, an increasing number of states, acting as employers, have given home-care workers the right to vote on whether they wish to form a union. Home care costs states one-third the amount they spend for comparable care in nursing homes or long-term-care facilities. The wages won by those workers’ unions ensure less employee churn and better care, which is why disability advocacy groups such as the American Association of People With Disabilities have submitted amicus briefs in Harris supporting the union.

It’s no mystery why a majority of home-care workers in Illinois and many other states have voted to form unions. In 2012, the median hourly wage for direct-care workers hired out by agencies was $10.21. Such workers covered by union contracts in Illinois are paid $13 an hour and get health insurance. In Washington state, according to an American Federation of State, County & Municipal Employees official, the unionized workers make $14.34; in Oregon, $13; in California, $12.20.

The eight workers who brought the lawsuit the court heard Tuesday don’t want to pay dues to the union that won them their raises, though I’ve seen no reports suggesting they’ve volunteered to give back this additional money and forgo health insurance. In the 1977 case Abood v. Detroit Board of Education , the court ruled that members of public-sector unions were required to pay the portion of union dues that went toward bargaining and administering their contracts. Two years ago, however, an opinion by Justice Samuel A. Alito Jr., joined by the court’s four other Republican appointees, suggested that the court should reconsider Abood.

The effects of such a reconsideration could be far-reaching. If workers can benefit from contracts without paying even what it costs the unions to secure those contracts, those unions would suffer revenue declines that could render them toothless. Once their unions lost power, home-care givers — a group that is overwhelmingly female, disproportionately minority and almost universally poor — would be highly unlikely to get any more raises. Turnover rates within the care-provider workforce would surely rise.

Such a reconsideration could be of even greater consequence if Alito & Co. go further and rule that no member of a public-employee union should be required to pay the dues that go to securing his or her contract. With the decline of private-sector unions, ­public-employee unions have become the preeminent organizers of voter mobilization campaigns in working-class and minority communities, the leading advocates of immigration reform, the foremost lobby for raising the minimum wage and the all-around linchpin of the modern Democratic Party. A sweeping, party-line ruling by the five conservative justices in Harris could significantly damage the Democrats.

Whatever its effect on the nation’s partisan balance, a ruling that neuters the organizations that poor, working women have joined to win a few dollars an hour more would put a judicial seal of approval on the United States’ towering economic inequality. Well into the New Deal, the Supreme Court consistently overturned laws that enabled workers to win higher wages, helping to delay the advent of the middle-class majority that emerged after World War II. It now has the option to speed that middle class’s demise.


By: Harold Meyerson, Opinion Writer, The Washington Post, January 21, 2014

January 23, 2014 Posted by | Economic Inequality, Supreme Court, Union Busting | , , , , , , | 1 Comment


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