Law and Politics, National

Donald Trump’s Supreme Court will be a real threat to labor and that’s going to hurt the Democrats

November 21, 2016 
By Amanda Marcotte

Washington, DC – Hillary Clinton’s loss in Rust Belt states that Barack Obama won handily  like Wisconsin, Michigan and Pennsylvania has resulted in widespread hand-wringing about why Democrats struggle to capture the votes of the white working class.

There’s a lot of discourse about the need of coastal professionals to reach out more, emphasize more, “feel their pain.”

This will supposedly lure back voters who started breaking off from the Democrats decades ago to vote for candidates who offered race-baiting or — as in the case of Donald Trump — openly racist rhetoric rather than economic solutions.

What is being talked about much less, however, is the role played by labor unions in protecting workers’ rights, and in the American economy more broadly. In a widely shared article in the Harvard Business Review, “What So Many People Don’t Get About the U.S. Working Class” by Joan C. Williams, the word “union” appears only once, and the context is negative.

This oversight is particularly troubling when one considers that Republicans certainly don’t think unions are a minor issue. On the contrary, Republicans see labor organizing as a major impediment to their electoral prospects. So they have done everything in their power to dismantle the ability of unions to organize workers and bargain collectively on their behalf. Now that Trump will have the power to appoint federal judges, especially Supreme Court judges, these efforts to destroy organized labor will get a big assist in the courts.

“One of the reasons that Republicans [in Wisconsin] were trying to gut collective bargaining rights for public sector unions” was that they wanted “to defeat Obama in 2012,” explained Joseph Slater, a law professor at the University of Toledo in Ohio who specializes in labor law.

While the effort to constrain or destroy labor unions in Wisconsin didn’t lead to Obama’s defeat then, “it may have well have helped defeat Clinton in 2016,” Slater added in a phone interview.

Considering how narrow Trump’s general election victory was in that state — Politico currently has his lead as smaller than 30,000 votes — it’s safe to bet that the decline of union power in that state was a major factor. But conservative forces have even bigger designs on public unions — plans that they will almost certainly be able to bring before the Supreme Court. That prospect should terrify the labor movement and its supporters because filling the seat left vacant by former justice Antonin Scalia with a conservative judge will likely result in a majority hostile to labor unions.

“Justice [Anthony] Kennedy is not going to be the savior of the organized labor movement before the Supreme Court,” Charlotte Garden, a labor expert and associate professor at the Seattle University School of Law, said over the phone.

“Kennedy has been quite hostile to organized labor,” she said. “In fact, in some of the major union cases that have been in front of the Supreme Court in recent years, it was Justice Scalia that was in the unusual role of being the potential swing justice.”

In January, when Scalia was still alive, the Supreme Court heard arguments in the Friedrichs v. California Teachers Association case, which challenged the practice of “agency fees,” whereby unions charge all the workers they represent in a given industry, whether individual employees want to join the union or not. When unions bargain for higher wages and better benefits, that helps all the workers not just the union employees. By charging this fee, unions are able to avoid the “free rider” problem, by which workers benefit from labor organizing without participating in it.

“The analogy I always use is that I like my cable provider fine — good selection of channels, not too expensive,” Slater explained. “But if they were legally obliged to provide me cable service without me paying them anything, I might not pay them anything.”

In 1977, in the Abood v. Detroit Board of Education case, the court upheld the practice of agency fees for public sector unions. It seemed like settled law, but for this case, the plaintiff argued that such agency fees violate the First Amendment because people paying for them are subsidizing forms of speech — such an union organizing and pamphleteering — that they may disagree with.

November 20, 2016

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