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February 17, 2016
By Larry Cary

It’s not polite to speak ill of the dead. In general, I practice this admonition, but the politics surrounding the recent death of Supreme Court Justice Antonin Scalia requires assessment as it highlights the dangers our democracy is facing with the almost totally successful effort of the right wing to capture and control all the branches of our federal government.

As a professor at the University of Chicago Law School some 35 years ago, Scalia was the first faculty advisor to the school’s chapter of the newly formed Federalist Society, a right wing organization of law students and attorneys which has served as an important ideological and networking vehicle for the advancement of its members into the judiciary.  Upon Scalia’s death, the Federalist Society publicly acknowledged their gratitude for his conservative role on the Court and for the “tremendous kindness he has shown the Federalist Society and many of its leaders and members since our founding.”

The Federalist Society says its mission is to change the law schools and the legal profession in America, which they decry as being “strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.”  These are code words about wanting to roll back the advances made in our laws after the Great Depression in regulating some of the more outrageous excesses of capitalism and fostering freedom, personal choice and workers’ rights. The Federalist Society describes itself as “a group of conservatives and libertarians” dedicated to “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”

That view – putting a premium on so called individual liberty - contributed to the Supreme Court’s decision a few years ago in Citizens United which held that corporations are people with first amendment protected rights of free speech preventing the government from limiting the ability of corporate America to buy elections. Because of this decision, the Koch brothers and their allies have put together a Super PAC with nearly a billion dollars in it which they intend to spend supporting whoever the Republicans nominate for President in this year’s election.   

Scalia’s view of the need to put a premium on so-called individual liberty, also meant that he was expected to rule later this term in the case of  Friedrichs v California Teachers Association to make “right-to-work” the law of the land in the public sector and thereby undermine workers’ right to collectively bargain over wages, benefits and working conditions. With Scalia’s death, the Court is expected to be split 4 to 4 - leaving the law as it is – that is to say, that an agency shop provision in a contract is constitutional, as it has been for over 30 years, because it properly balances the rights of employees to not be forced to join an organization they don’t wish to join. But, at the same time, not allow those employees to be free riders who get all of the benefits of having a union without having to pay their fair share of the union’s costs of collectively bargaining for them and the rest of the employees.

Operating with only eight Justices, 4 of which were appointed by a Republican President and 4 of which were appointed by a Democratic President, means much of the basic work of the Supreme Court will be hampered. Many of the Supreme Court’s decisions are intended to resolve conflicts among the Circuit Courts of Appeal which geographically divide the United States into different jurisdictions. When legal cases are decided very differently by different Circuit Courts, it may be legal to do something in one Circuit that is illegal in another. Supreme Court cases resolve these conflicts and make the law uniform throughout the country. That can’t happen if the Supreme Court splits 4 to 4 because a majority is needed to overturn a Circuit Court’s decision.

President Obama now has the Constitutional authority and obligation to nominate a new Justice to the Supreme Court. Any nomination he makes must be confirmed by the U.S. Senate which is controlled by the Republicans. Normally, under these circumstances, a president would nominate a person more to the liking of some Republicans in the Senate in order to get a majority voting for confirmation. But these are not normal times.

The Republican leadership in the Senate has announced that no one nominated by President Obama will be confirmed. It matters not at all who the nominee is, or that she or he will do a good job as a Justice. What matters most is that the Koch brothers and their right wing allies in our country will no longer have a conservative majority controlling the decision making of the Supreme Court just as the Tea Party zanies and right wing Republicans seem poised to take the White House and consolidate their total control over all three branches of the federal government. They already control the House and the Senate.

The New York Times recently reported that Republicans in the Senate have for a year prevented President Obama from nominating judges to the Circuit Courts of Appeal.  Before nominating a judge, the Administration must obtain the consent of the Republican Senators in the geographical area occupying the Circuit Court of Appeals.  Without such consent, the nomination will never be voted out of the Republican controlled judicial committee onto the Senate floor for confirmation.

While many positions on the Circuit Courts are going vacant, only one nominee has been confirmed in a year’s time. This shows just how dedicated the right wing is to fully transforming our society and making it into what they want. To paraphrase the words of the right wing conservatives and libertarians making up the Federalist Society so loved by Justice Scalia, the need is to reorder the priorities within our government “to place a premium on individual liberty, traditional values, and the rule of law” so the billionaire class of our country has unfettered rule.

Much is at stake in the next Presidential election. Whether Bernie Sanders or Hillary Clinton is nominated, the labor movement and its allies must unite behind the Democratic candidate and work very hard at winning the presidential election and trying to regain a Democratic majority in the Senate and the House. This is a very tall order. But the reality is the next president is expected to have at least two and possibly three appointments to the Supreme Court.

Who wins the presidency will determine whether public sector unions will continue to exist as relevant organizations. It will determine whether the National Labor Relations Board, which regulates labor relations in the private sector, continues to have labor-friendly Board members or whether it will exist at all. On a social level, it will determine whether a women’s right to an abortion or even to get contraception will be preserved, and it will determine whether our government acts responsibly to mitigate climate change or whether the Koch brothers’ fossil fuel interests will have the unfettered right to continue to pollute the environment.

Justice Scalia’s sudden death highlights that this election will determine whether the Supreme Court acts as a break on the right wing’s domination of Congress and its elimination of our rights as workers, citizens and human beings, or becomes more of an agency than it has been for spurring on the dismantling of so much of what defines our government and legal system as good.

Larry Cary is a managing partner of the labor law firm of Cary Kane LLP.  He can be contacted by going to his website:  www.carykanelegal.com.

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