Tag Archives: labor unions

Brett Kavanaugh–The More We See, The Worse It Gets

While critics of his nomination fixate on Kavanaugh’s distaste for Roe v. Wade, his vendetta against health care programs like the ACA, and his antagonism to government oversight (evidently, the king can do no wrong), Paul Krugman highlights an even more dangerous element of the nominee’s judicial philosophy, his anti-worker bias.

It isn’t as if working-class Americans haven’t been taking it on the chin for a long time. But in the era of stagnant wages and diminishing worker protections, Kavanaugh might just be the coup de grace. Krugman points out that Trump has governed as a pretty orthodox Republican, if you overlook the way he has replaced racial dog-whistles with raw, upfront racism; accordingly, he has consistently betrayed the populists who supported him.

Many people have made this point with respect to the Trump tax cut, which is so useless to ordinary workers that Republican candidates are trying to avoid talking about it. The same can be said about health care, where Democrats are making Trump’s assault on the Affordable Care Act a major issue while Republicans try to change the subject.

But I think we should be seeing more attention devoted to the way Trump’s nomination of Brett Kavanaugh for the Supreme Court fits into this picture. The Times had a good editorial on Kavanaugh’s anti-worker agenda, but by and large the news analyses I’ve seen focus on his apparently expansive views of presidential authority and privilege.

I agree that these are important in the face of a lawless president with authoritarian instincts. But the business and labor issues shouldn’t be neglected. Kavanaugh is, to put it bluntly, an anti-worker radical, opposed to every effort to protect working families from fraud and mistreatment.

Kavanaugh wrote the opinion absolving Sea World from  liability for the death of a worker attacked by a killer whale–hey, she should have known the risks. He says the Consumer Financial Protection Bureau is unconstitutional–so caveat emptor, consumer. He’s also supported the rights of business to suppress union organizing.

Krugman reminds his readers that Trump’s betrayal of working class Americans goes far beyond his counterproductive trade policies.

There’s growing evidence that wage stagnation in America – the very stagnation that angers Trump voters — isn’t being driven by impersonal forces like technological change; to an important extent it’s the result of political changes that have weakened workers’ bargaining power. If Trump manages to install Kavanaugh, he’ll help institutionalize these anti-worker policies for decades to come.

I grew up in Anderson, Indiana. My father was a Democrat and my mother was a Republican. Despite their other political differences, they agreed about unions: they both hated them. Back then, Anderson’s economy was dependent upon then-thriving General Motors and Guide Lamp factories, and periodic labor unrest was characterized by thuggish (and sometimes violent) union behavior. It was the (brief) heyday of union power, and that power wasn’t always used in moderation.

Today, the situation is reversed. Decades of successful Republican efforts to enact anti-union policies, plus such things as automation and the so-called “gig economy,” have eviscerated the unions that used to bargain collectively on behalf of workers. Meanwhile, corporate America has used its superior weapons–political contributions and lobbyists–not to level the playing field, but to tilt it dramatically  in management’s favor.

Wildly unequal power is not a recipe for fairness to anyone. When clout is more or less evenly distributed between labor and management, productive bargaining can occur. When either side of the equation dominates, the outcomes unduly favor the powerful– and generate resentment from those who leave the bargaining table empty-handed (if there is a bargaining table at all).

That resentment–and the racial anxiety that feeds on it–is what elected Donald Trump and accelerated the deconstruction of America’s democratic norms. The last thing we need is a Justice Kavanaugh to make the current impotence of organized labor a permanent feature of American law.

If Democratic Senate candidates in red states need a persuasive reason to vote against Kavanaugh’s confirmation, his overwhelming animosity to the rights of American workers should fit the bill. (Senator Donnelly–are you listening?)

Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.