“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History
For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”
What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.
A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:
Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question … because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)
The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”
When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.
But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.
The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.
Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.
Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.
By: Simon Lazarus, The New Republic, July 10, 2014
“Shuffling To The Right”: While You Weren’t Looking, Michigan Turned Into Texas
The Michigan legislature’s lame duck session is only three weeks long, but the state house didn’t need more than 18 hours to move the state sharply to the right. During a marathon session Thursday and Friday, the state house passed a variety of very conservative bills on issues from abortion to gun control to taxes. You can’t say they’re not efficient. The state, which favored Obama by 9 points and has long been home to a moderate-progressive movement, may now have a set of laws that puts it on America’s more conservative end.
Perhaps most shocking for pro-choice advocates was the effort to restrict abortion rights—or, as Mother Jones put it, “the abortion mega-bill.” Assuming the governor signs the bill into law, women in Michigan will now have to buy separate insurance policies to cover abortion. Otherwise, even in cases of rape or miscarriage, the abortion will not be covered. Clinics that provide more than 120 abortions a year will now face significantly more stringent licensing and regulation standards, much stricter than most other medical facilities. Pro-choice advocates have argued the new building codes and other requirements could shut down many clinics. Which, of course, is likely the idea of the bill in the first place.
Another bill does away with a bunch of gun-free zones, allowing people with concealed weapons permits to carry said concealed weapons in schools, day cares, hospitals—just about everywhere. The law does, however, allow schools and private businesses to remain gun-free zones voluntarily. The bill was passed before the horrific shooting at Sandy Hook Elementary School, but there’s little indication that changes the calculus for gun-rights advocates. Steve Dulan, who heads the Michigan Coalition of Responsible Gun Owners, told the Petoskey News the measure would offer more protection from such shootings. “If you have pistol free zones they are actually mass murderer empowerment zones,” he said. Similar measures have been passed around the country, advocated by the conservative American Legislative Exchange Council (ALEC), with the idea being that an armed citizen might be able to take down a shooter. Some public safety officials, however, have pointed out that more guns can complicate the situation for law enforcement. When both are armed, it’s hard to tell the murderers from the do-gooders.
There’s more of course. One measure would require voters to declare their citizenship before they can cast a ballot. Another makes recalling elected officials more difficult by shortening the number of days during which signatures could be collected from 90 to 60.
The bills now go to Republican Governor Rick Snyder. Earlier this year, Snyder made headlines when he vetoed a voter-ID bill, bucking his party because, in his own words, “the right to vote is precious.” But there’s little indication he’ll be pushing back against fellow Republicans this time around. He already signed right-to-work legislation into law last Tuesday, which he previously didn’t support. The new law strikes a blow to unions in a state where they once commanded tremendous power, and now puts Michigan in the same category with states in the South and plains, where workers have had considerably less power.
It used to be that parties in each state had unique identities and different policy priorities. Republican parties in Midwestern manufacturing states looked different than those in the rural (and often more conservative) parts of the country. Now, as deep red states like Texas and Oklahoma start their legislative sessions in January, it seems, they can get some bill ideas from Michigan.
By: Abby Rapoport, The American Prospect, December 17, 2012
“Silence Them!”: Romney On Teachers And Their Unions
Mitt Romney has absolutely no problem with billionaires buying elections. In fact, had it not been for billionaires’ buying elections, he would not be the Republican nominee for president.
But Romney has a big, big problem with working people’s participating in the political process. Especially teachers.
America’s primary proponent of big money in politics now says that he wants to silence K-12 teachers who pool their resources in order to defend public education for kids whose parents might not be wealthy enough to pay the $39,000 a year it costs to send them to the elite Cranbrook Schools attended by young Willard Mitt.
“We simply can’t have a setting where the teachers unions are able to contribute tens of millions of dollars to the campaigns of politicians and then those politicians, when elected, stand across from them at the bargaining table, supposedly to represent the interest of the kids. I think it’s a mistake,” the Republican nominee for president of 53 percent of the United States said during an appearance Tuesday with NBC’s Education Nation. “I think we’ve got to get the money out of the teachers unions going into campaigns. It’s the wrong way for us to go.”
That’s rich.
So rich in irony, in fact, that it could be the most hypocritical statement uttered by a candidate who has had no trouble scaling the heights of hypocrisy.
If Romney wanted to get money out of politics altogether and replace the current crisis with a system where election campaigns were publicly funded, his comments might be taken seriously. But that’s not the case. Romney just wants “reforms” that silence individuals and organizations that do not share his antipathy for public education.
Romney is troubled that unions such as the American Federation of Teachers and the National Education Association voice political opinions. But he is not troubled by Bain capitalists’ pooling their resources in Super PACs and buying election results.
Indeed, if it had not been for massive spending by the lavishly funded Romney Super PAC “Restore Our Future” on Republican primary season attack ads—which poured tens of millions of dollars into the nasty work of destroying more popular rivals for the nomination.
When he was facing a withering assault by “Restore Our Future” in Iowa, Gingrich said Romney would “buy the election if he could.”
Romney could. And he did.
Never in the history of American presidential elections has so weak and dysfunctional a candidate as Romney been able to hold his own as a presidential contender solely because of the money donated by very wealthy individuals and corporations to the agencies that seek to elect him.
Yet he now attacks teachers who are merely seeking to assure that—in the face of frequently ridiculous and consistently ill-informed media coverage, brutal attacks by so-called “think tanks” and neglect even by Democratic politicians—the voices of supporters of public education are heard when voters are considering the future of public education.
Romney is the most consistently and aggressively anti-union candidate ever to be nominated for the presidency by a major American political party. His disdain for organized labor has been consistently and aggressively stated. He’s an enthusiastic backer of moves to bust public sector unions, he supports so-called “right-to-work” laws as a tool states can use to bust private-sector unions and he wants to do away with guarantees that workers on construction projects are fairly compensated and able to negotiate to keep job sites safe. The Republican platform on which Romney and Paul Ryan are running goes so far as to call for the “enactment of a National Right-to-Work law,” which would effectively undo more the seventy-five years of labor laws in this country.
That’s extremism in the defense not of liberty but of plutocracy. But there are points where Romney goes beyond extremism.
When it comes to the role of teacher unions, the Republican nominee’s royalist tendencies come to the fore. Unable to recognize the absolute absurdity of a nominee who would not be a nominee were it not for the support he has received from billionaires and millionaires seeking to prevent kindergarten teachers from pooling small donations to defend their schools, his message is the modern-day equivalent of the monarch of old sneering at the rabble and ordering his minions, Silence them!
By: John Nichols, The Nation, September 26, 2012
“Reeking Of Politics”: Class War At The Supreme Court
On the eve of the Supreme Court’s much anticipated ruling on Obamacare, here is a simple test for detecting the politics behind a decision: When reading the rulings, look for the double standards and answers to questions not posed by the cases themselves. By those measures, the Supreme Court’s record in the past week fairly reeks of the justices’ politics.
Exhibit A is Justice Samuel Alito’s majority opinion in Knox v. Service Employees International Union, Local 1000, in which nonunion California state employees whose wages and benefits were nonetheless set through the collective bargaining process of SEIU — the state’s largest union — sued the local to get back a special dues assessment it levied in 2005 to fight two ballot measures. The union’s normal practice was to allow nonmembers to opt out of paying the roughly 44 percent of dues that went to matters not directly related to collective bargaining, such as election campaigns. In this instance, however, no such opt-out was allowed.
The issue before the court was whether mandating the collection of the special assessment from nonmembers violated their constitutional rights to free speech. Alito and the four other conservative justices ruled that it did, and liberal Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed in a concurring opinion. But Alito’s opinion didn’t stop there. It also changed the long-standing practice of allowing nonmembers to opt out of paying dues toward union functions outside collective bargaining, mandating instead that the unions “may not exact any funds from nonmembers without their affirmative consent.” In other words, unions would have to ask for nonmembers’ permission to collect political assessments and, possibly, any dues at all. “Individuals should not be compelled to subsidize private groups or private speech,” Alito wrote.
Alito’s ruling struck at the heart of American unionism. By laying the groundwork for creating a right for nonmembers to avoid dues payments, he came close to nationalizing the right-to-work laws that 23 states have adopted (though 27 have not). As Sotomayor noted in a somewhat astonished dissent (Ginsburg and Justices Stephen Breyer and Elena Kagan dissented on this point as well), this wasn’t the question before the court. Neither side had argued that issue in their briefs or oral presentations. “The majority announces its novel rule,” Sotomayor wrote, “without any analysis of potential countervailing arguments.” And it did so in defiance of the court’s own Rule 14, which states that “only the questions set out in the petition or fairly included therein will be considered by the Court.”
Taken in context with the conservative majority’s other recent rulings, Alito’s opinion also revealed the most class-based double standard the court has exhibited since before the New Deal. In the 2010 case Citizens United v. Federal Election Commission — rendered by the same five justices who signed onto Alito’s ruling in Knox — the court ruled that corporations could directly spend their resources on political campaigns. These two decisions mean that a person who goes to work for the unionized Acme Widget Company can refuse to pay for the union’s intervention in political campaigns but has no recourse to reclaim the value of his labor that Acme reaps and opts to spend on political campaigns. Citizens United created a legal parity between companies and unions — both are free to dip into their treasuries for political activities — but Knox creates a legal disparity between them: a worker’s free-speech right entitles him to withhold funds from union campaign and lobbying activities, but not the value of his work from the company’s similar endeavors.
If you seek a precedent for this anomaly, might I suggest the following sentiment on unions written (not in a court ruling, mind you) by former president William Howard Taft in 1922, when he was chief justice: “That faction we have to hit every little while.” That’s the “legal” tradition to which Alito adhered: fear and loathing of workers’ organizations.
The club champion for double standards, however, is not Alito but Antonin Scalia. Dissenting from this week’s decision striking down major provisions in Arizona’s anti-immigrant law, he argued that Arizona has the sovereign rights of a nation in protecting its borders — a right he gleans through such a bizarre reading of the Constitution that not one of his fellow conservatives signed on to his dissent. Yet the same day, Scalia signed on to a Gang of Five decision declining to hear Montana’s case that its century-old law banning corporate contributions to political campaigns should take precedence over Citizens United. In the world according to Nino, Arizona has the rights of a nation-state, but Montana must submit to the Gang of Five. You’re sovereign when Scalia agrees with you; you’re nothing when he doesn’t.
Politics? Heaven forfend!
By: Harold Meyerson, Opinion Writer, The Washington Post, June 26, 2012
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