“When legitimacy is measured in sociological terms, "
It's a good thing this wasn't thrown around during the Roe v. Wade decision.
But just how does it work? A majority of the population decides a decision is correct? A plurality? A tear-jerker minority?
Some one who shouts "Oh the humanity" the loudest?
When Justice Gorsuch was questioned by the Judiciary Committee for a seat on the Supreme Court, I watched in disbelief at how smooth he was in
evading the questions by giving innocuous answers. He should have been an actor because he knows how to lie but make it sound believable.
Another political decision by our infamous supreme court. In Citizens United v. FEC the court rejected the argument that shareholders should be protected from being compelled to fund corporate speech. Yet in Janus v. American Federation of (government) Employees the court ruled that members of a union have a first amendment right not to fund their union's political speech if they disagree with it. http://www.scotusblog.com/2018/06/symposium-janus-radical-rewrite-of-the...
Sounds like an inconsistency to me. I thought that the court was supposed to interpret laws - not make them. I think that the court needs to be reined in - perhaps by a constitutional amendment allowing members of the court to be removed from office by a vote of the people as was California Chief Justice Rose Bird in 1986.
Congress can impeach individual Supreme Court Justices, and has done it in the past around 1840 or so. But the Senate did not remove the impeached Justice. They could have.
I’m a conservative Republican, which means some stop listening. I’m also a former teacher & NEA member, son & grandson of teachers, with both a niece & nephew who are teachers & wife who is a para-educator & union member. we sent 6 kids thru public schools.
Janus doesn’t ban unions, doesn’t prevent anyone from joining one, nor prevent them from doing the job for which they were formed - to negotiate for better conditions for the members. it does somewhat level the playing field for those who have, for too long been captive to a system that discounts & ridicules their own political beliefs and spends their money lobbying for positions to which they are diametrically opposed.
Unions have gotten fat and lazy and morphed more into a power struggle between the leadership & "the Man" to whom they are trying to stick it. They have lost their primary focus. Maybe this will get them back on track.
Do not kid yourself that they are trying to improve the lot of the rank & file, especially those who disagree with their positions. They are in it for the power & influence. They bargain for what THEY want regardless of who is paying & who is not. If they now have to demonstrate that they really have the best interests of the rank and file in mind, they might listen a little better. If a non-joiner gets the same deal as members, that is the choice of the employer & no skin off the noses of the union. If the non-joiner gets a worse deal, they are always free TO join.
Freedom of choice.
Linda Greenhouse has wielded the hatchet for left-wing causes and intimidated the Supreme Court for decades in just this way, particularly in the Ledbetter case where she grossly misstated what the court had actually done (simply uphold obvious law). But a new generation of justices have emerged who understand they will never have her support, and the Greenhouse Effect is coming to an end. Perhaps the Constitution will return from exile.
Linda Greenhouse observations of the Supreme Court shines a light on the petty maneuvers some of its members--mainly Reppublican--make to change established law. She was aptly named because she always shines a light on their misdeeds.
end unions. end communism in the united states.
1
Teachers are always in favor. It's teachers unions that are the problem and always will be as they try to take every penny for themselves, kids and education be damned. The author doesn't seem to recognize the difference
1
Wow, Keith, those venal teachers and the unions that try to get better conditions for the teachers. These teachers make such huge salaries and here they are wanting more! Spending all day in a room full of children and then taking work home, marking papers, making lesson plans. What a nothing job. Anyone could do it blindfolded, right? Well, let me tell you the truth: teaching is one of the most difficult jobs on this planet, and I’ve heard the husbands of teachers (guys in medicine, banking, etc. tell of their shock to learn of all the hard work involved). The shock of learning their wives work so much harder than they do, and yet receive so little remuneration. And in many states, a teacher needs a master’s degree to get permanent certification. Take away unions and the teachers will become total serfs (as they already are in some states, usually the states with lowest educational standards).
2
Unions "skew" Democratic? LOL...This is all about a fundraising arm of the Democratic Party...Justice Kennedy asked the union attorney if unions would have less political influence if About was over turned, he said yes. Justice Kennedy so aptly responded: Isn't that the end of this case? Abood is toast...5-4
1
But it's fine for the NRA to donate to the republicans? Letting people refuse to pay fees when they benefit from representation is calling theft. If they overturn Abood, then I hope the unions tell those people they are on their own to bargain for wages and pensions.
1
There are many organizations that promote causes on both the right and the left. These are funded by individuals, billionaires (i.e. to George Soros on the left; Koch Brothers on the right) etc, but they are using their own money or contributions from others who share their view. If union members want to donate to political action committees, fine; but a line must be drawn when , in the name or collective bargaining, fair share funds are used for political purpose. Abood is gone this week..trust me I know the outcome already.
Fair share funds are not used for political activity. They are used to convey the costs of getting and enforcing a CBA. Union members contribute funds by choice to the union PAC. Those use of those funds must be tracked. I know this because I was a Union chapter President, councilor and steward. I also contributed to the PAC. I sat through many hearings at the statehouse where I had to listen to politicians rail against unions yet clearly have none of their facts straight. This is a made up issue by duplicitous people.
1
This article highlights, perhaps unintentionally, the fact that while the other two branches of government have been reformed to make them more democratic, the Supreme Court has not. Folks forget that senators used to be appointed by their state legislatures and there were no term limits for President. There have been quite a few amendments to our Constitution and reform of our institutions, but not with respect to the Supreme Court.
Lifetime appointments, for example, are absurd. How much more undemocratic does it get? Public accountability is necessary if we are to get the "sociological legitimacy" that is required to keep governments from failing. Indeed, it is sociological conditions that should determine legal conditions. "Consent of the governed" and whatnot.
2
Consent of the governed indeed. This is exactly why the Judiciary is intended to be the least political of the branches so that they can assure that the law is what the political branches and The People decide through their elected representatives rather than some amorphous “sociological legitimacy” determined after-the-fact by judges.
Judicial legislation has the perverse effect of removing accountabilty from the political branches and deprives The People from seeing the true impact of the laws their representatives create.
Every time the Supreme Court intervenes to re-write legislation (as with the ACA) or create new law from whole cloth (as in Abood or Roe) they deprive The People of effective and accountable government and ignore the consent of the governed.
2
Airman,
Tip of the cap for arguing the legality aspect, unlike most of the opposing voices here.
I disagree that all law can be perfectly codified to create clear resolution on all issues, otherwise there would be no need for a court system.
I feel it is clear in the founders intent that the law be kept as simple as possible, and "judgement" of the application of the law to certain situations would be essential. Thus "sociological legitimacy" is a core principle of our legal system in my opinion.
If this were true the lack of bias in the Supreme Court would be critical. This is why a lifetime tenure was designated for the bench (so fear of an unpopular but correct ruling wouldn't cost them their job).
However I believe we need to modify the approval process so that choosing someone for their political bias becomes no longer a part of the "game". Both sides do so, and even this great system of ours can survive only so much gamesmanship before it implodes.
No Senate approved position should be able to pass without at least (10-20...?) percent of both caucuses approval. This would create great strides towards who would serve the country, rather than who would serve the party.
To your previous post, public sector unions are on questionable ground due to their impact on the budgets that pay them.
However this case is also on questionable ground as Ms. Greenhouse points out and the state still could ban the union, but voted not to.
"Congress shall make no law respecting an establishment of religion" is the most neglected law in this nation that doesn't even understand the ontology of its constitution.
I don’t know what’s more sad, that Ms. Greenhouse utterly fails to even try to make a statutory or Constitutional argument against the plaintiffs in this case or that so many of the Times readers follow suit.
The simple fact is that as a matter of law the fate of public employee unions is irrelevant in deciding this case. The only relevant facts are whether or not the plaintiff’s Constitutional rights are infringed by the law governing those unions that forces them to pay for union representation they do not want and that supports union activities with which they disagree.
The Abood decision created a distinction without a difference, completely unsupported by the law, between public employee union political and bargaining activities. All activities of public unions are inherently political as all of it is funded by taxpayer dollars. Public employee bargaining activities directly impact the budgets of the government for which they are employed and therefore the political choices of our elected officials and the taxes that support them.
I have no problem if individual employees wish to join together to form a union but forcing them to do so or to support them with dues is plainly unconstitutional. The fate of those unions after the fact is entirely in the hands of their willing members and leadership. If they provide value to their members commensurate with their dues they will survive. If not, they won’t. That’s what the Constitution, and freedom, demands.
1
I don't want corporations I own stock in buying more corruption from an already stinky system. What rights do shareholders have besides getting bought out by managements taking themselves private?
With all due respect, Steve, how does your comment relate to mine? I didn’t reference corporations at all as they are not a party to this case.
They have the right to vote for directors who support their views, and they have the right to sell? What other right do you think you should have?
In simpler terms it seems the writer is linking the court social relevance to the popularity of their decisions rather than its, non-political constitutional mandate. Are we best served by a SCOTUS that considers the social implications of its decisions , more than or on equal footing, as legal analysis and precedence ? If the answer is yes, than the illusion of a fair, impartial judiciary, as a whole is destroyed. This will create severe crack in the foundation of a free democratic society. If "Jane Q. Public" loses faith in a fair, impartial and independent court system, available to her to redress her grievances and or make her whole after suffering a loss , self-help will be her only choice. Anarchy will soon follow. Totalitarian rule would be sold by the powerful to be the only cure. Once implemented, the rulers would never relinquish the power. This is how a democracy dies. The answer must be no. However, the Roberts court is playing frighteningly close to the fault line. Analysis, both in terms of the law and in regard to beneficial public policy, along with established precedent would make the decision in the Janis case simple, follow the precedent. If, however, Justice Alito follows the political ambitions of the republican party, the "legal legitimacy" of the Robert's SCOTUS will be noticeably damaged. Social legitimacy belongs to a different branch of government.
3
The court has been without legitimacy since Roberts was confirmed.
Bob Newman
2
Republicans have long been jealous and undermining of public education and public school teachers. Public education will be undermined by the conservatives decision against teacher bargaining on this court. Many workers in many other professional will suffer for wage and benefit reductions.This is part of the long game for Republicans. These illegitimate court decisions stem from the consequences of Merrick Garland's rightful place on the court being stolen and the subsequent illegitimate placement of right winger Neil Gorsuch. This corruption of placements on the Roberts court will taint decisions for decades. This is part of the corruption of the country now.
8
Don't you just hate it when there is finally a resolution to something you feel passionate about then you can stop writing long boring stories about same. Personally I feel that these unions are bogus and when left in place cause problems with free speech.
2
Perhaps you have no financial worries about your compensation now or in future. Perhaps you care enough about your fellow Americans to read the history of the labor movement in America. How do you imagine the country without labor unions?
Do you at all envy Europeans their work schedules and holidays?
6
Samuel A. Alito Jr. is the "poster boy" for the "politician in judicial robes."
9
The court is already illegitimate. After Scalia died, it was the job of the Senate to open hearings on anyone that the president proposed. Obama nominated Merrick Garland, who was well respected by both Republicans and Democrats. They refused to even consider him. Instead, Trump nominated Neil Gorsuch, a much much less qualified candidate which the GOP Senate, of course, rubber-stamped.
13
How have Detroit schools fared since the 1977 decision?
3
I first read Marbury v Madison in the 1962-63 academic year and thought, as a practical matter, it made sense. After all, what other branch of government would pass upon constitutionality. And to boot, the Court was refraining from exercising a law's grant to it, of a power it deemed not authorized by the Constitution. Wouldn't a self-aggrandizing Court have found a way to exercise that power?
I went on to become licensed to practice law and did so, probably for too long, but never in a context which called for considering a re-think of Marbury. But it appears others have and I'm embarrassed to say I don't know what the state of the discussion is among thoughtful experts who want only to do the right thing, of whom I believe there to be many. And in any event, it's too late for action affecting this case.
Still, seems as though it would be a useful first step to constitute a commission to review the current state of what's been called the most important SCOTUS decision ever. I mean seems off the mark - if not just plain wrong - that a member of the Court can let it be known - in whatever fashion - that he/she favorably disposed to consider a particular matter in a particular way.
2
Footnote: Consider too that, not in recent memory, has any nominee to the Court responded directly to a Senate Judiciary Committee member's question as to whether he/she is favorably disposed to consider a particular matter in a particular way.
2
Please remember that SCOTUS, per Article II of the Constitution, still comprises only 8 legitimately
appointed and confirmed members. The nomination and confirmation of SCJ Gorsuch defied the laws of My County, Tisofthee, the country in which I was born and raised. Mind, you, however, I suspect that SCJ Gorsuch, may very likely turn out to be a Souter rather than a Suitor. Methinks Mr. McConnell (who continues to gender-identify as male) may have miscalculated when he said, back in August 2016, " "One of my proudest moments was when I looked Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy.'"
7
Why do you think that Gorsuch might become a Souter? What indication of that? We could only hope.
Sorry. His votes so far show he more like a Scalia than even Scalia was. Enjoy the Janus decision!
2
It's easy to see that since the Robert's court made the Citizens United decision opening the floodgates of money into Republicans in Congress, that this case will follow the same path 5-4.
10
Interesting that Justice Alito has been so obsessed with public employee unions. His father was a well-known career state employee in New Jersey. Take it for what it's worth.
6
Linda Greenhouse is being polite. The Supreme Court, the most fragile branch of our democracy, has already lost legitimacy for me and I think the majority of Americans. It now has and deserves no more respect than Congress.
Once insulated somewhat from the partisan brawl, it has become an open player in the hyper-partisan polarization of our politics. As such, is directly infected by intensified corruption of our electoral system, where the cost of running for office had increased more than 10-fold in the last decade and more than 90 percent of campaign donations come from very large donors and corporations and single-issue PACs. Citizens United was no fluke.
We've gone from the quaint notion that presidential candidates should not announce a "litmus test" for Supreme Court nominees to a presidential election that was essentially decided over which candidate was pledged to appoint a nominee that would vote for or against abortion rights.
And then of course there was Bush-Gore.
The Rube Goldberg system of "checks and balances," of which the Court has always been a key part, is now one dubious decision away from collapse.
21
Ever since Reagan, the Republic Party has been all about making war on the commons.
War on Horace Mann's "common school." War on commonly-owned federal lands, wilderness and National Parks. War on the health of our common environment. War on public broadcasting, and on "equal time" and the "fairness doctrine." War on campaign-finance restrictions that put some limits on the dominating political propaganda of the rich. War on the right of every common person to cast an equal vote.
In 1381, 1689, and later stages, the English commons revolted and eventually received evolutionary change. In 1524, peasants rebelled across Germany. In 1789, Frenchmen were aroused; in 1917 it was Russians. Arguably, we defended our common interests in 1776, 1861, 1933.
Who foresaw the long and persistent attack on the American commons that began in 1981 with Reagan?
13
The question I hope is on the minds of at least some of the 5 Republican justices is whether the credibility of their court (and the Judiciary) matters enough to overcome the partisan interests they were specifically appointed to uphold and advance. It is entirely up to them whether the Supreme Court, with its life-tenured justices, is an independent check and balance as the founders intended, or just another partisan branch of government that exclusively serves Party and Donors.
The court lost credibility when the 5 Republican justices effectively elected the Republican who lost the popular vote in 2000. They lost more credibility when ten years later they effectively declared corporations people with superior rights to buy elections.
That loss of credibility seemed to have affected them in 2012, when blocking Obama's Affordable Care Act was their party's driving imperative. The Roberts Court bent over backwards to uphold the constitutionality of the ACA itself, even as they gave Republican governors authority to withhold Medicaid from undeserving takers.
Destroying unions has been a top Republican priority ever since Ronald Reagan earned sainthood by breaking the air traffic controllers union. It serves corporations by weakening workers, and serves the Party by weakening a traditional source of Democratic organizing. The Janus case will once more force Republican justices to choose between their institution and their party.
13
This court surrendered its legitimacy with Bush v. Gore
and it has not gotten better
13
Abood is toast as it should be. How in a free society can anyone be required to join a labor union against their will?
3
because they benefit from the union negotiations with companies that the individual employee can NOT hope to keep to some standards, any standards!! DUH!! Even non--union employees, when hired by government contracts, will benefit from the union standards, and they do not pay dues, already!!
Union are the only brake against huge corporations whose only interest is profit, money, for them. There is a LOT more to the world than profit, my dear. Do I need to tell you that?
8
No one is required to join. There are other employment options, and the union can be dissolved by a vote of the employees. Individuals can even choose to opt out of political contribution. While there are questions about conflict of interest in public service unions, and legal questions about applicability of first amendment rights your argument shows only bias, not thoughtful opinion.
Unions exist because before there were unions your wage, working conditions, hours, all were controlled by the company you worked for. Read about the steel mill strikes and how they were attempted to be broken. Or about the conditions of the miners, or the railroad workers, or, or, or...
There's a reason for lyrics like "I owe my soul to the company store", and a reason people voted to unionize.
12
Under current law, no one is required to "join a labor union against their will." If a union is in place in your workplace you are not required to join the union or to pay union dues. You can be required to pay a service fee to the union for your share of the work the union does in your behalf in collective bargaining, pursuing and processing grievances and other services which the union is required to provide all employees, whether they're union members or not. Otherwise, people who don't want to join the union receive the union's services for free, on the backs of their fellow employees who do pay their fair share for the union. You cannot be required to pay the union for its lobbying function or other political functions, even though, in fact, they would all benefit you as an employee.
6
I’ll give 10-1 the SCOTUS continues to do its duty to the rich and drives the nail into the Union.
8
Sadly, I think you are right. This court grants more rights to corporations than actual humans.
1
We already know the 5 conservative “Christians” will rule against the people whose power to resist powerlessness and to fight abusive bosses, corporations and laws has been steadily whittled down by the Roberts court. But at least there will be no question that all three branches of government are in the hands of the Republican Party which means they are all ruled by a cruel and capricious solipsist-Trump.
These five conservative “justices” should have corrected their course to save this democracy. Instead they fell over themselves to end “one man one vote”, to destroy the Voting Rights Act, to maintain gerrymandering. I’m not holding my breath in the hope that they’ll support the only recourse labor has against overwhelming money and power. I know they won’t. They have animus toward the hoi polio.
2
Unions should be protected as a common good and membership in them is a right. That right is protected by the constitution in the right of assembly.
2
"the greater common good" concept is NOT something that has ever concerned conservatives and reactionaries. I can see no reason why "the greater common good" concept suddenly should be recognized or valued by the Roberts court.
4
Dear Linda,
The Supreme Court is part of the effort of the right to redefine social legitimacy. Once very few people have ever had the experience of being in a union, once very few people will have ever heard of a class action lawsuit, then the hegemony of corporate America is normalized - it becomes much harder to question, what you don't know, can't even conceptualize.
12
It was very clear from the oral argument that the court will vote 5-4 to overrule Abood on the premise that even normal agency work, such as lobbying for better work rules or even the protection of the union itself is political speech. I disagree, but in an era in which almost any action is considered to have a political tinge to it, the right wing's logic has a twisted consistency to it.
4
I agree with FDR. There is no place for public employee unions.
He was very firm in his opinion and it is well documented.
9
In FDR’s time teaching was a highly respected profession like medicine. It was compensated by communities where teachers were loved for what they did to teach as doctors were loved for what they did to repair.
Both doctors and teachers were paid worse then, both relatively and in absolute terms, than today.
I have nothing but admiration for LInda Greenhouse but nevertheless I strongly doubt that a Court that gave us Bush v. Gore and Citizens United gives much of a damn about sociological legitimacy.
15
You do realize that five of the nine judges who ruled on Bush v. Gore are either dead or retired from the Court. That's more than half, and three of the five were in the majority.
1
Odd that you find the court's legitimacy only in question when they oppose liberal doctrine. The many cases that have gone left of public opinion seem to be in the clear. The Supreme Court revealed itself to be a joke when it issued Roe v. Wade. Since then, both parties have confirmed its status as a joke by furiously jockeying to make ideologically safe appointments. We would be better off without the court at all.
6
Roe v. Wade gave women freedom from Bronze Age fairy tales.
2
The vast majority of those who object to Roe v. Wade are religious zealots, but we were created as a secular nation, and “we don’t trust in God” was central to our founder’s goals.
2
Ms. Greenhouse notes the following in attempting to delegitimize the anticipated Janus decision:
“When legitimacy is measured in sociological terms, a constitutional regime, governmental institution or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate or otherwise deserving of support.”
I eagerly await her article, using the same standard, on the SCOTUS abortion decisions.
10
>>> "I eagerly await her article, using the same standard, on the SCOTUS abortion decisions."
Are you aware that nearly 80% of Americans support a woman's right to choose?
1
JB,
Careful what you wish for. The percentages supporting some form of legalized abortion in some cases is bigger than those who would forbid it. It passes the litmus test of "...relevant public regards it as justified...". Just sayin...
1
Most women and men want safe and legal abortion in America. No one wants children one cannot afford to feed or educate. The anti-abortionists seek only to degrade the general population to penury for their own reasons and exploitation.
The reaction to the horrors of the border should tell you something.
Thank you exposing the right-wing backers of the anti-union Janus v. AFSCME case. The lawsuit is the fruit of a decades-long attack on unions and government services.
9
Of course public sector unions "represent the future of organized labor." Can you name a single other field with a similar institutionalized conflict of interest?
The unions contribute heavily to the politicians whom they negotiate with for higher wages and more generous benefits. The politicians give " other people's (aka taxpayer)" money to the unions so that they continue to receive union financial support at election time.
Governments allow some union workers to do union business during the workday on taxpayer time. Some as high as full time on union work, rather than the government job they are hired and paid to do.
It's time to end public service unions.
10
I strongly disagree. Collective bargaining in probably the only thing that at this time stands between most federal employees and the minimum-wage salary to which the current Republican president and Congress would like to subject them.
7
John Roberts claims to be concerned about the Supreme Court's legitimacy, but in practice he has shown himself to be a completely political operator, never passing up a chance to strengthen Republicans' hand in elections. The notorious campaign finance and voting rights decisions over which he has presided are the clearest examples, but this case presents just as tempting an opportunity to tilt the playing field. A hint of public sympathy for teachers, let alone his faux concern for the Court's image as a neutral "umpire," isn't going to stop him and the other loyal Republican lapdogs he serves with from delivering the goods once again.
9
Why then, may a corporation give money politically where it will which may be in opposition to my wishes as a stockholder, either large or small. And beyond that why is a corporation treated as a person when it is many. Nor can I as a father not determine the decisions of my family.
8
Any shareholder who disagrees can easily sell their shares. That ends their involvement
2
AJ,
But someone who works for the Koch brothers for example could demand their paycheck be increased by a proportional percentage of any contribution the Koch's make politically? Well, they could except for not having a way to afford bringing it to court as an individual, oh wait, make that arbitration, oh wait, the SCOTUS already ruled this is acceptable for corporations.
AJ. Correct and any employee who disapproves of union dues can quit their job. Same philosophy. Correct???
1
For anyone wondering, that's what judicial activism looks like.
4
As soon as I begin reading a new piece by Ms Greenhouse, I'm already anticipating the next one. This doesn't aid to the discussion. Suffice it to say that Ms Greenhouse speaks for me. It is one of the great pleasures of my lifereading her writings...simple as it is. Thanks you Ms.Greenhouse.
8
Ms. Greenhouse speaks for all rational people. She is a National Treasure. Thank you for your comment, Rabbi.
Reagan started the war on unions decades ago and now the supreme court is likely to finish it. Overtime, paid sick leave, vacations, and 40 hour work weeks were all brought to us by collective bargaining. Without unions we would all be independent contractors with no rights or protections. Sometimes you don't know what you've got until it's gone.
10
The Supreme Court lost its legitimacy since the day of Gore v Bush case and they selected G W Bush as the president. The court is against common people . It acts like another political branch of the Republican Party. Most of the judges are right wing political hack. People lost their faith in all three branches of government---executive, legislative and judiciary. Our government is for the rich and by the rich.
5
Folks need to understand that unions were there to fight for us for weekends, vacations, shift differential, better salaries, on and on. Without unions workers are doomed. Don't think for one minute that a worker can negotiate on their own.
The numbers are dwindling and corporations are loving it. Soon workers will be back in the dark ages and no one to stand up for them. I don't feel sorry for them at all.
Is seems that half of the Supremes are bought and paid for by the repulsive party, they will definitely stand with corporations. Remember, these folks brought us "corporations are people".
6
Absolutely! Anyone that believes that corporations are Santa Claus is delusional.
Sociological legitimacy underpins some of our most effective laws. E.g. the Uniform Commercial Code largely represented a codification of established commercial practice. Imposing a legal structure that runs contrary to generally accepted practice is a recipe for wide spread resistance and disputes.
In many respects, the law should be like training cats. Observe their behavior carefully, and then tell them to do what they were about to do anyway.
1
Linda,
Surely you jest and tease us with the thought that the Supreme Court as currently staffed would consider the merits of this issue and even stay on course with the very recognized principle of precedence. This one is 5-4 before "all rise" is even uttered!
6
Let's hope you are correct.
Sadly, no argument here.
Nope. Those words do not speak to the Roberts court. It's fairly clear that they barely care about legal legitimacy, much less sociological legitimacy.
3
Speaking as one who has been reading constitutional law since middle school, practiced law for decades, and still believes that the rule of law is humanity's greatest invention,
I am convinced that the current Supreme Court of the United States was unconstitutionally staffed, lacks legitimacy, has a majority that is an unprincipled enemy of America's traditional pluralistic constitutional democratic processes, and therefore is owed neither respect, nor deference, nor obedience.
Americans will have to find some means other than our corrupted federal courts to restore our democratic processes.
9
I would impeach Clarence Thomas for starters both because he is low hanging fruit and because he lied during the Confirmaton process.
2
Are we surprised? This is what happens in dictatorships and authoritarian regimes.
5
Oh, poor teachers. Poor unions.
Did you notice that the teachers' unions alone contribute MORE to Democrats than the NRA contributes to all politicians? Or the dastardly Koch brothers?
And that's not counting the money that other unions and union councils contribute - almost exclusively to Democrats.
No wonder that many Americans don't want their money and in-kind contributions going to causes and candidates they oppose through unions.
1
Parkbench,
Again with the myth. All you describe is why Republicans want to eliminate unions.
What you and many others keep falsely claiming is the mandate for your money going to a cause you oppose. It would be a great counter argument if it was true, but it isn't.
Did you object to Citizens United for the same reason? Money that could be paid in wages, can be spent on political lobbying and campaigns with no option to opt out.
In the case of the unions you have an opt out option. See the difference?
I suppose I shouldn't be this petty, but there is a part of me that wishes those who are swayed by this argument get to experience a life in which corporations dictated terms again, and the social safety net was torn apart. Unfortunately they would have to take the rest of the country with them.
Do not help Trump attack the legitimacy of the courts and our Republic.
The mega-rich (including Trump) have decided that democracy and the rule of law are standing in the way of their profits. They would like capitalism without democracy as practiced in Russia and China. They have allied themselves with the religious right, who are against the separation of their church from our state.
Together they are attacking the very legitimacy of our Republic. They are attacking the entire idea of truth, the rule of law, the Justice Department and FBI, the press,... and the courts. Trump called the entire judicial system broken.
First they corrupt the government. Then they say that the government is corrupt anyway and the "emergent", so they should find the most corrupt pathological liar they could find and make him president. Now they are saying the entire Republic is corrupt, so we can do anything we feel like.
If they can convince the American Public that the government is not illegitimate, then they can rip up the Constitution and rule through the hard power of large piles of cash and private armies.
The good thing about Trump is that he has led the Republican Party to openly admit that all of the things they claimed to car about, from families to national security, was a big fat lie, and the one thing they do care about is tax cuts for the rich, and drowning our Republic in a bathtub.
We may need better justices, but,
DON'T HELP TRUMP DELEGITIMIZE OUR REPUBLIC.
Democracy? Do you mean the kind proposed by Bernie Sanders, where the 47% who do not pay federal income taxes get to use their vote to take money from the 10% who pay 70% of federal income taxes? That’s not democracy. It’s mob rule.
7
Billy Graham, chief snake oil pedlar, was opposed to labor unions.
1
Interesting collection of thoughts "From Where I Sit".
Let me recap the last three...
Because there is corruption in unions they should be abolished. Instead we should allow the magically flawless free market regulate what business needs allowing wages of $12/day so Apple can survive. And if the people making $12/day can't pay their "fair share of taxes" we should take away their right to vote.
Do I have that right?
If the union has to represent those who do not support it, or do no help pay for the bargaining and benefits they get, those who do should have some sort of means to prevent this.
In the past that could even mean retaliation against those other workers. I have seen cases where the union members simply refused to work along with the Scabs as they are called, or simply would not help them complete the work.
None of this wil change until the working crowd gets fed up with the situation,just as they did in the 1930s with the auto manufacturers.
5
Ms. Greenhouse overlooks another side to her newfound irony, however. If the unions are indeed popular and their activism is bearing much fruit for their membership, the people they represent — both members and non-members — will be more likely to pay the fees that are issue. More to the point, though, they'll be doing so willingly and making a decision based on the merits by their own lights.
Newspapers and all other businesses keep their customers only by demonstrating that they're doing a worthwhile job. So should it also be with unions.
4
Why would scabs pay for something they are getting for free? When I worked for Boeing, the voluntary engineers union, of which I was a member, was forced to represent scabs when they were laid off. We became an agency shop after our successful strike, membership voluntary, dues mandatory.
1
If the Republican party was interested in "fairness" instead of silencing a voice that opposes most of their bad ideas, they would eliminate the federal requirement that the union represent free loaders who won't pay dues.
Let the unions bargain for their members and let the other would-be free riders get the best deal they can on their own--a lesson in bargaining power. And when they get fired for no cause, let them whine to the boss about how unfair it is. See how much "due process" the boss is willing to just give away.
But, if some workers think it is better to be treated like a minion than to support the salary of a union representative who works for their best interests, I'd be very interested to see just how well that goes for them. My grandfather worked for Ford before the unions came in, and he knew exactly how much value he got out of his union. Time to learn that lesson again.
Mr. Fallon's "sociological legitimacy" should apply to the Legislative and Executive branch, but the Judicial branch is charged with interpreting the laws AS WRITTEN. Therefore, “legal legitimacy” should be sufficient and the only trhing considered.
The fact that teachers are becoming more popular in no way changes the facts of the case, and should not enter into the decision making process at all. This, and all other cases, need to be decided entirely on the legal basis.
1
Following the history of SCOTUS rulings-- it would not be possible to understand legal trends and evolution outside of culture and politics. As scholars such as Amar have highlighted-- the Constitution is not a legal code and allows fairly broad space for interpretation and evolution as designed by the Founders.
1
Interpreting even a statutory law as written is not an easy task for many reasons. Language is malleable. The legislative intent is difficult to determine because of how laws are passed and the goal of a law is amorphous as society changes and as sophisticated people change their behavior in response to a law. Legislatures make mistakes or pass possibly conflicting laws. Therefore, interpreting the laws as written is more of a philosophy than a precise instruction. How much more so with a constitution ratified over 200 years ago.
1
"But Janus is a case, it’s fair to say, of the Supreme Court’s own creation.
It arrived on the court’s docket a year ago at the court’s implicit invitation after three previous efforts by conservative justices to find a vehicle for overturning the old precedent had foundered."
So the right-wing on the Court are engaging in some blatant judicial activism.
I'm not optimistic about the outcome, given these are the men who decided it was constitutional for the man who owned Hobby Lobby to impose his own "moral" beliefs about birth-control onto his female employees. (This before he was caught smuggling artifacts from Iraq, which probably helped fund terrorists like ISIS.)
But our governor here in Illinois shows the problem with what the right claims vs. what they do regarding fiscal responsibility. In his single-minded attack on unions he drove our state's shaky credit rating ever lower by refusing, year after year, to pass budgets. The only reason Illinois credit wasn't cut all the way to junk was because sensible Republicans in the state legislature joined Democrats and overrode his veto last year.
The anti-union action is to allow freeloaders to benefit from negotiation efforts they won't fund. The governor's attack on unions was an effort to be more like states around us - which happen to receive far more federal money back than we do. Race to the bottom, freeloading all the way.
4
These people troll for plaintiffs for hire to fabricate causes of action.
2
"So is it possible that just as the Supreme Court is about to take a hammer to the teachers’ unions, teachers are back in favor?"
Your question answers itself.
If teachers unions are, indeed, back in favor, then they have nothing to worry about.
On the other hand, if they remain just as corrupt and self-serving as all other public service unions, then why should people be compelled to support them?
4
Unions in Germany have seats on company boards, Jeff Guinn
3
Pardon me, but as far as legitimacy is concerned, this ignores the 800 pound gorilla named Neil Gorsuch, who should no longer be allowed to practice law, much less sit on the Supreme Court. It was unspeakably unethical that he did not refuse the nomination on the grounds that it belonged to Merrick Garland until and unless Garland's nomination received a hearing and a confirmation vote. If you are not able to decide correctly in this bizarre case, you certainly can't be expected to rule honorably on the Court. Sooner or later, his presence on the court will come back to haunt us.
7
The USSC doesn’t care about workers. It answers to corporations. Of course they will rule against union dues.
5
The Roberts court already lost its sociological legitimacy a long time ago. Remember Citizens United?
8
After reading this article and trying to glimpse the nuances of legal reasoning, I am left wondering why President Obama did not bring suit against Mitch McConnell for blocking Merrick Garland's nomination to fill the seat vacated by Justice Scalia's untimely death.
Surely President Obama had standing.
4
Because McConnell didn’t break the law. He violated a longstanding “gentlemen’s agreement or Senate tradition. In other words, he cheated to win which is something he does all the time. McConnell has poisoned the longstanding comity and courtesy of the Senate and in so doing diminished it.
2
The right would accept only bitter 5-4 victories from now until the end of time as long as that meant its agenda would keep winning.
That's the strategy, in fact, the "Gorsuch Gambit."
3
Equating a decision favoring unions over individuals as a matter of legitamacy is the equivalent of telling racism when you don't like a particular policy. It is a worn and somewhat hackneyed smear fully in line with today's liberal notion that one should be hysterical 24/7.
1
Members of the Supreme Court have the best government union gig in America...lifetime appointments no matter how incompetent and with more time-off even than teachers.
3
Mitch McConnell ended the legitimacy of the court with his power play.
8
The worst court since the early 20th century.
4
If you want a third independent branch of the government, need to have independent judiciary.
Justices and appeals court judges chosen by politicians or local elected judges, by definition, be unbiased adjudicators of law. May be the country needs to examine alternatives used by other advanced countries and remove the politicians from the process.
3
If you have a few moments, look up the Court's decision in Planned Parenthood v. Casey. In her opinion, Justice O'Connor offers a very good explanation of the "sociological legitimacy" Ms. Greenhouse describes.
In one telling phrase the Justice notes that, "... the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation."
Much of what the Roberts Court's conservatives have been trying to do since before it was the Roberts Court are not grounded in any intelligible principal that I can find, much less in one that the Nation writ large will accept. The Roberts Court has been doing a highwire act for a number of years with respect to the institution's legitimacy. Thus far, in a number of cases one justice or another (usually Kennedy, or rare occasions Roberts) has cast a vote that rescued the Court's conservative ideologues from themselves. They got away with Bush v. Gore and almost fell in NFIB but were saved by the Chief Justice. One of these days, however, their luck will run out.
2
"Legal legitimacy" vs "sociological legitimacy" is an issue deserving of more discussion. My first thought was the current crisis with Central American refugees. Maybe treating them as criminals has "legal legitimacy," but manifestly it lacks "sociological legitimacy." When government institutions rely wholly upon laws to justify their actions in the face of widespread public opposition -- as in the case of separating infants from mothers at the border -- it is the law that suffers. How many Americans accept the "sociological legitimacy" of the Trump regime? Clearly, around 40-45%; that leaves 55-60% who do not. That lack of legitimacy extends beyond the immigration issue -- more for some than others -- and is the opening to an oppressive government that relies on force to enforce laws not widely accepted. It is a very slippery slope indeed, one that is not even understood to exist by the likes of Sessions and Trump.
The argument against Union is specious. An individual cannot negotiate with some huge corporation. The idea is laughable. We must have unions, or the rights of workers will be run over rough shod, as they are in China, and as they are in the 'right to work' (that is, right to work like a slave for little pay and less benefits) states.
11
The Chinese you deride seem to have a better understanding of the needs of business, and thus, capitalism, than we do. The only way that Apple can sell iPhones for the popular price point of $650 while maintaining $300 billion in cash in hand is for somebody somewhere to build them for a wage of $12/day. Raise the wage and prices go up driving down sales. Keep prices the same while allowing profits to be impacted will drive away investors, causing the share price to fall, damaging the company, perhaps irreparably.
2
@fromwhereI sit, you are not even thinking about the incalculable environmental damage these phones are doing, why isn't china or the companies PAYING for that, and for me, that is really incidental to the human damage - you have never heard of the FoxConn suicide nets?? let the share price fall, and lets let these companies start charging what it actually costs ALL of the EARTH to support the greed of the few!! I don't need cheaper chicken mcnuggets. I need a clean earth with fellow beings who can survive, l ike dolphins and whales, etc. especially those fellow being I have not even met yet.. Capitalism does not work.
Unions are a small flame of light against the capitalistic darkness of the greed of the few.
Linda's argument that public school teachers are now popular and therefore their unions should be is just off base.
Yes, we appreciate teachers. They often have an impossible job, they are not paid enough, and they are blamed for all kind of things not under their control.
But that does not imply their unions are popular.
That's because the union, for right or wrong, defends people who should never be teachers, and because of union rules, it is impossible to fire them.
New York City has a rooms full of teachers who they cannot dismiss but who cannot be placed in classrooms, often because of violations or incompetence.
While I realize why the union has to defend these teachers, the public does not have to like the way our taxes are being spent.
So, yes, we love teachers.
But no, we hate their unions.
t seems Linda is just ticked off that the Supreme Court has a conservative majority.
6
"It’s no secret that public employee unions skew Democratic."
The big secret is WHY they support the Democratic party - all the Dems do for unions is take their campaign donations. In 2009, when they held both chambers of congress, the Dems refused to bring the Employee Free Choice Act to a vote.
The Act would have provided a shot in the arm to labor and been a counter-measure to Republican right-to-work efforts. Obama, during the worst year of the great recession froze public employee pay as an austerity measure.
That alone should've been enough for labor to cut the ties to that once-great, working class party.
3
Public sector employees should not be able to unionize period. They are government employees. Only private sector workers should be allowed to unionize. Government employees provide services for public safety and use that only governments can provide and control. There should not be a union that works off a tax based process. It is an invitation for public corruption.
6
Private unions are equally corrupt and use the same methods of conspiracy and tactics of extortion and intimidation as their public sector counterparts. Get rid of both and let the invisible hand of the free market determine wages, working conditions and benefits. But of course, liberals won’t allow this because then many of their members may find out how little they are actually worth to the world.
1
Adam Smith and his ‘invisible hand’ is a deregulator’s dream. It has never worked and is disproven completely. The GOP is the only group that endorses this foolishness. The latest economic GOP debacle caused by this crooked thinking was “The Great Recession” of 2008.
History is justly critical of FDR’s court packing ploy when he viewd a deeply conservative Court as an arm of the Old Republican majority. That court systematically used its judicial power to overturn the New Deal. In Ms. Greenhouse’s terms they were bereft of “sociological legitmacy”. In the 1936 election, FDR and his Democrat majority won again in a land slide.
The point should not be lost on the current conservative court. Elections matter because they reflect the aggregate judgment of the American people. When the court drifts too far from public consensus on polarizing issues, they endanger their judicial reputation and legitimacy. They cease to be viewed as politically indifferent jurists and become 9 more unelected politicians.
4
"Question of Legitimacy?" Why such a hyperbolic headline over a case where the Court may or may not rule the way Ms. Greenhouse thinks it should rule?
While there is merit to Miss Greenhouse's comments, the tone of this headline is inappropriate. It puts the NYT into the name calling in game. Please NYT: tone it down and be more respectful of the Court.
4
No, please be less respectful of the Court. The actions of Alito show how political it is.
Alito, isn't qualified to judge a dog show!
3
The author is pro union. What are the odds?
4
the scotus will continue to fight for the overdog……..
5
The Robert's Court is illegitimate by its nature. He lied at his confirmation. Alito lied at his confirmation. Gorsuch should not be empaneled on it. Thank goodness, Scalia is still dead.
An illegitimate court that is not calling "balls and strikes" but implementing a fascist reading of the Constitution.
We the People must vote this November like our lives and the lives of our children depend on it. They do, believe me!
8
No, Linda, these cases do not present a test of the court's legitimacy. Bless your heart.
3
We are doomed...
3
As bad as the Scalia Court is the lower federal courts are even worse. You have lost government of the people by the people and for the people. Time for a new motto. How about money speaks , more money speaks louder.
Why do you even have a Scalia Court when inquisitors are chosen on how they will vote and real judges like Merrick Garland are refused a fair hearing?
For liberals Sessions citing Romans 13 was simply the devil using scripture, for Jews who know their history, Romans 13 has a face , a place and a time. Hitler was Chancellor of Germany and the sermons rang out from the pulpits. Romans 13 has the blood of millions of innocents to answer for, it it no wonder Sessions couldn't cite it with a straight face.
5
I thought when Greenhouse retired the Times would find less extreme ideologists to comment on the court. Greenhouse likes it when the Court is on her side and wanders from precedent and discipline and claims the court's "legitimacy" is at risk when it goes against her. As if "politics" didn't enter into abortion, affirmative action and gay marriage.
When a writer is so blindly biased, they aren't talking about principle. So why pretend?
5
Politics is a very broad arena, but I think the author intends to use the term in a narrow sense. Of the three issues you mention, gay marriage, abortion, and affirmative action, I believe only the last is truly political. Both abortion and gay marriage are extremely emotive issues with ramifications for voting behavior, but they are not fundamentally questions of competing claims on resources. If women can legally seek abortions, no other interest block loses out thereby, and if gays can marry, it doesn’t mean anyone else can marry less. The choice of a side on these issues is mainly a symbolic indication of a commitment to a particular wodview and the tribe that shares it. In the case the of public unions and affirmative action, on the other hand, we are dealing with questions of access to finite resources that confer significant practical power, and that combination makes those issues truly political, rather than merely symbolic.
4
The Court majority are Republican hacks. Nothing more.
8
Amazing that the author was the so called objective reporter of the Court for the Times. She is unfailingly liberal.
8
All I know is that unions have exerted way too much power in Connecticut and their absurdly unsustainable pensions have brought this state to the brink of bankruptcy. I'm all for paying employees more TODAY. That gives them the means to save their own money for retirement and we can get rid of the ridiculous concept of the pension. What kind of drugs was the person taking who said "I have an idea: you can work 25 years and then we'll support you for the rest of your life." ? Unions have a place in the world, but the problem is that once they achieved their (very righteous) goals of elimination of child labor, reasonable working hours, and fighting for safety and comfort in the workplace, their purpose has became self-feeding and completely at odds with the reality of fiscal sustainability. In the private sector, the check on unions is that companies will shut their doors when they can't afford the union demands (see Hostess bakeries). In the public sector, the problem is that they can suck a government dry, yet that government still must operate and the rest of us citizens get stuck with the bill (welcome to Connecticut). Simple: Nobody should have to pay dues to an organization with which they do not associate. If the union can't afford to operate on the dues of its voluntary members, then they should either seek to cut costs or increase "sales" (i.e. make themselves more appealing) - you know, like how any other business has to operate.
4
Police Unions have nothing to worry about, as they polish their jack-boots.
3
Police are the last ones who should be unionized. We need to bring back the draft and fill police and firefighter positions from lists of conscripts. The salary savings alone ($25 monthly stipend for essentials vs over $100k for a senior detective) would be astronomical.
“When legitimacy is measured in sociological terms, a constitutional regime, governmental institution or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate or otherwise deserving of support.”
Or as it was put elsewhere:
“Governments are instituted among men, deriving their just powers from the consent of the governed.”
But, as the redoubtable Mr. Dooley said in 1901:
"No matter whether the constitution follows the flag or not, the Supreme Court follows the election returns."
1
When owners of capital come together to form negotiating bodies called corporations, the government, including the Supreme Court turns them into People with all of the rights of a human, but none of the responsibilities.
When, in response, the workers come together to form a negotiating body, so they can be equals in the labor market, the government and courts sabotage them.
If you actually read Adam Smith and the other Classical Economists, you will see detailed and realistic studies of the forces of economics and how they relate, with exceptions, caveats, and ways for governments to intervene when markets doing work.
Neo-Classical Economics (including supply side economics, neo-liberalism) throws out all of the realism and detail of Classical Economics to declare (against all evidence) that markets always distribute resources efficiently, and that any government involvement in markets is always bad.
Unless of course that involvement happens to help the mega-rich, with tax cuts, refusing that help crony monopoly power, bailouts (no one on MSNBC went on a screaming rant against bailouts for global banks, only against bailouts for homeowners), and trillions of dollars of free money from the Federal Reserve, coming to at least $10,000 per U.S.citizen in the last decade.
(We know that because Bernie's legislation forced the only audit of the Fed.)
The right and centrist Democrats work together to create socialism for the rich and free markets for workers.
Fight Back!
5
If you read Marx’s Communist Manifesto you’ll see that labor and capital must never hold the same status.
1
My grandfather faced death threats to help found the meat-cutters union in Cleveland.
My father saw first hand the inefficiency that out of control unions created in Americas auto industry. He also saw the lifting up of hard working citizens created by a union able to bring enough weight to the table to negotiate a living wage and a work week of 60 hours or less.
As a fan of history and having grown up hearing about both the good and bad potential of unions I am sure that the working class needs some form of collective bargaining to thrive.
I am doubtful that most of those supporting "right to work" laws have any idea how damaging the loss of this tool and forced arbitration will be in the lives of their children and grandchildren. I'm also very skeptical that the unions will actively "police" their own houses effectively enough to weather this storm.
I am not doubtful though about the fact that as corporations and governments get larger, the need for individuals to be able to form groups to negotiate with these entities is essential. I also have very little doubt that the SCOTUS will in this case rule on a case that should be dismissed and find, once again, in favor of big business.
We need legislation to insure this partisan charade indulged in by both parties is stopped. Enact a law requiring approval by a majority and at least 20 percent of each caucus for a nominee. The founding fathers didn't think to protect us from this but they left a path for us to fix it.
4
If an employee should not have to pay dues to a union he or she doesn't support, then should a citizen be required to pay taxes to a government he or she doesn't support?
10
The Roberts Court lost its legitimacy with the bizarre Citizens United case. The Court is now stacked with guys who don't even appear to listen to oral arguments, but come up with moronic comparisons between broccoli and health care.
11
I agree that this court has minority represented judges (Bush & Trump) and so it is illegitimate.
1
I don't have any respect for this court of drones who deny everyone the liberty promised by "Congress shall make no law respecting an establishment of religion". This court lost its credibility with me long ago. The US "justice" system is just an extortion racket for lawyers now, in my view.
6
Hopefully they will also get rid of those "resort payments" at hotels when you don't want to use their resorts.
3
Alas, Ms. Greenhouse, the question of legitimacy of the Supreme Court has already loomed and been answered, negatively. It happened when Gorsuch accepted a position that allows him to interpret the Constitution on behalf of the nation - a position won for him by means of blatant disregard of that same Constitution. Anyone who used to respect the Court remembers this shameful act. Theft in broad daylight. Legitimacy? Not so much.
19
Any legitimacy questioned by the Gorsuch confirmation also questions the legitimacy of the Democratic Party.
Three Democrats voted for him.
Most of the Party did nothing while McConnell was stealing that seat except continue to beg for compromise.
The Republican Party doesn't want to compromise. They want to crush you.
But Democrats keep bringing cupcakes to a nuclear war.
How do you negotiate compromise with a party that lies about everything, especially its supposed "family values?"
They want to delegitimize the courts and our Republic, so they can have capitalism without democracy, just like Russia and China.
Don't help.
And it's the GOP that has railed against judicial activism for years!
9
Exactly. According to Ms. Greenhouse, judicial activism is OK for the left, but not OK for the right.
3
Ms. Greenhouse we all know those people were put on the Supreme Court *precisely* to destroy unions. There will be only one possible outcome. The reactionary majority will home in like an Exocet missile on the chance to destroy public unions.
9
There is no question: this court is not legitimate.
11
Here’s another marker about the Court’s legitimacy. I am not a lawyer, much less a constitutional scholar. But I can predict the vote of every justice in most cases with an accuracy of 90-95%—even before the cases are argued in court. To paraphrase Justice Robert’s famous phrase, for the most part, the justice’s are not calling the balls and strikes. They are calling their own pre-conceived ideas in almost every case. I can’t think of anything which would undermine the Court’s legItimacy to a greater degree.
9
The conservative justices are just Republican Hacks. They are attempting to get the court back to he Lochner era when the court always seemed to rule in favor of the powerful. We need to get a majority Democratic congress (a supermajority in the Senate would help) and impeach these conservative judges starting with Thomas, Allito and Gorsuch. These three justices are so partisan that they can't even hide that fact behind their opinions. This country is really going backward and the Supreme Court is letting it happen.
7
The composition of McConnell's court is very much like Elaine Chao's stint as Secretary of Labor where she commented about the smell of American workers and their need to take more baths. There is no question about the stench, only the source.
7
Will the SCOTUS remove the few remaining speed-bumps to oligarchy?
Guess.
6
All you need to know is whenever it's the little guy against the powerful, the supreme court rules in favor of the powerful.
9
The unions will lose the Janus case; bet on it. It is one of the cases for which Gorsuch got his job to vote on. Sen. McConnell knows what's going on.
10
Talk about totalitarian. We will take your money without your consent to be used for political purposes. Can you imagine the outcry if the political purpose was to support Republicans? There would be riots in the streets.
6
Ugh. You need to read up on this issue and read the actual words Greenhouse wrote. The dues collected from non-members are used to pay for negotiating better wages and working conditions. Political purposes are paid for through a separate fee that non-members don't pay. Unions are required by law to include non-members in the wage gains. Why should free-riders enjoy the benefits of union protection without sharing in the costs?
7
They already are when 1.6 trillion dollars went to tax cuts for corporations and the very wealthy.
Have you been out of the country?
Actually, Abhood separated the two, creating “agency fees” which by definition includes only those costs related to member representation like office overhead, benefits, legal and accounting support of contract negotiations, etc.
Somebody like Alito needs only “practical legitimacy” to impose his right-wing views on our country. In other worrds, if he has the power to do it and he wants to do it, he’ll do it. Simple as that, although they don’t teach that legal standard in law school. I think you’re dreaming if you think the 5 “usual suspects” won’t jump at the opportunity to engage in a little “result oriented jurisprudence” and deal a death blow to public employee unions. I seem to have used up my weekly allotment for quotation marks, for which I apologize.
7
The court will be illegitimate as long as Gorsuch sits in Garland's seat. This will become ever more clear as Trumpism finds its inevitable place on the trash heap of history.
18
"The court will be illegitimate as long as Gorsuch sits in Garland's seat."
Don't be surprised when Trump gives that as the reason for disbanding the Supreme Court, and declaring himself arbiter of the Constitution.
Don't forget, his first excuse for firing the FBI is that Comey was so unfair to Hillary.
Don't help Trump delegitimize the Supreme Court.
You can't triangulate a pathological liar. Only clear truth and justice can stand up to Trump.
Why isn’t there a rule that every Court opinion favor liberals. It only seems fair. Conservatives should be put in prison and never be allowed to vote or contribute money to political causes.
1
Democratic voters and the liberal media do not have final say so on whether the SCOTUS is legitimate, just because you don’t like their decisions. Us conservatives think they’re doing jus’ fine.
4
Clarence Thomas needs to be charged with sexual harassment and disbarred and Gorsuch shouldn’t even be there. This is the most corrupt Supreme Court we have ever seen and their disastrous decisions are destroying people’s lives.
20
Let's all say it together, again and again:
Gorsuch shouldn't even be there.
3
Why don't we just appoint sociologists to the Supreme Court, perhaps five of the nine?
Professor Fallon lives in a bubble called "elite academia".
1
The Roberts court is illegitimate to its core. There is no question about it.
4
This case will be decided by a stolen seat. The court’s crisis of legitimacy extends to every 5-4 decision in which Gorsuch is the deciding vote. Until the day he resigns in shame, which we all know won’t happen, or a conservative appointee is blocked to even up the scales of justice, the court has zero legitimacy in every 5-4 conservative vote. The Republican Party has degraded into a band of lawless thugs, and this is just one of too many tragic examples. And if anyone says this is too harsh, deferential respect in language is no longer due these quislings. It has long been forfeit.
7
Sorry, but for as long as Neil Gorsuch serves, the legitimacy of the Supreme Court is worthless.
7
Greenhouse is like Janus: an ability to talk out of both sides of her mouth. If she really believed that the Court's "legitimacy" rests on adhering to precedent, she would be sounding the call to overturn Obergefell v. Hodges and all its illegitimate progeny immediately, because the Court was clear in Bowers v. Hardwick that states could ban sodomy. But the truth is that "legitimacy" is a game here, used to cow some mushy conservatives into believing that unless they maintain LIBERAL precedents (Roe et al. v. Wade the preeminent example) somehow the Court's "legitimacy" is at stake. The Court's legitimacy is really at stake when it pretends to infallibility and persists in errors because they can be called precedents.
2
Ms. Greenhouse, please don't fall into the trap that so many other journalists find themselves in as we navigate the Trump era. While Mr. Trump is stupid, heartless, unqualified, a misogynist and a racist, he is not an excuse to abandon the principles of good journalism. There are two sides to every supreme court case, each has merits. Close to half of America probably supports each side in almost any dispute of any consequence. It is your job to present both sides fully, so that the reader can make his or her own judgment, and so that that judgment is improved through fully appreciating the other side. Your own views, or the Times editorial view, are of secondary interest, and best left to the concluding paragraph or two. Fanning self-righteous anger is best left to TV cable news and Rachel Maddow. Cynicism and snarkiness are for college journalism students trying to impress their peers, not professional journalists. Your views are the most predictable and least interesting part of any article, even if they match with 80% of your readers. No matter how bad Trump may be, or how misguided the current GOP congress may be, your job does not change. I know you are capable of doing better.
4
If the Supreme Court is going to undo Abood, then I would think that unions could challenge federal labor law provisions requiring unions to represent all workers, not just members.
If unions can't collect their fair-share agency fees to cover the costs of collective bargaining, then why shouldn't unions be allowed to negotiate for their workers only? We may even see several unions in a single workplace, each negotiating for its members. Employers will quickly realize they were better off negotiating with a single union, but so be it.
4
Greenhouse seems to invoke the ghost of O. W. Holmes' legal pragmatism, renamed now as Richard Fallon's distinction of legal legitimacy vs. sociological, as though the distinctions were novel.
Consider this blurb re legal pragmatism: "As opposed to the self-imposed limitations entailed by the classical view of judicial decision-making, legal pragmatists emphasize the eclectic nature and the diverse aims of the law. More specifically, legal pragmatists largely agree upon four main aspects of a pragmatist version of jurisprudence: (1) the important of context; (2) the lack of foundations; (3) the instrumental nature of law; and (4) the unavoidable presence of alternate perspectives."
1
Roberts has already been tested and failed . The day the Senate majority leader stated that there would be no hearing for Garland, Roberts, as the head of another of the three branches of government, should have parried this institutional power grab and defended his branch's autonomy by informing Mitchell that until Garland's hearing was concluded he, Roberts, would abstain from voting. Instead Roberts revealed himself as a Republican team player, nothing more, nothing less. Our only consolation for this contempt for the Framer's intents and stain on the robe of Justice is knowing that there is a special place in history for people like Roberts.
6
Except for the 4 liberal judges, I lost my respect for the Supreme Court when they voted that corporations were people. It was one of the worst decision in history.
18
It wasn't one decision. It is over a hundred years of decisions.
We need a Constitutional Amendment to make clear to the Supreme Court that:
Corporations are Not People and Money is Not Speech.
See, for example, MoveToAmend.org
6
I look forward to Linda Greenhouse's intelligent evaluations of the state of our union (from the judicial point of view). The next to last paragraph's discussion of social legitimacy and this are thought-provoking:
"the court necessarily skates on thin ice when it comes as close as it has here to serving an agenda that is not the public’s but its own — and by a 5-to-4 vote."
I'd say the horse has left the stable with Gorsuch's bias in place of rational centrist Garland. These consequences will last longer than the shorter-term horrors we face daily. That is the point. We will all suffer.
Sometimes I find it easy to accept that earth itself is getting ready to rain consequences on its apex predator. Not before time. We have become to big for our britches! When compassion and intelligence fail, it's time for pain to bring forward reality. Reality is inescapable, and we hurt each other at our own risk.
7
If the Supreme Court rules against the unions then it must logically also allow them to negotiate better salaries, benefits and working conditions only for their members.
If that is not acceptable then clearly some formula must be reached to reimburse unions for their labors on behalf of everyone.
How short our memories, how myopic our vision. As working conditions, benefits and salaries worsen and the gini coefficient trends towards the rich we should never forget that the first line of defense for the majority of blue collar and public workers has always been and always will be unions.
8
Starting with Pres. Reagan, the Repubs have been constantly pushing to get rid of labor unions, who helped expand the middle class in US. They also use phrases like ‘right to work states’ to fool their base.
Unfortunately, it works for them, since they are able to convince their base that public education is not crucial for their children. At the same time, the leaders send their kids to private schools and universities!
1
I'd say that the first line of defense for American blue collar workers is our nation's border. If the market wage for a blue collar job is the minimum amount needed to entice a poor Mexican to make a run for a porous border, then blue collar wages here won't be much higher than wages in Mexico.
That was the reason why labor unions pushed for immigration restrictions back in the 1920s. It was also the reason for why Caesar Chavez, back when he was a union leader rather than the patron saint of Latinos, worked with La Migra to keep out illegal alien farm workers.
1
I wouldn’t generalize the support so many Americans feel for teachers, hammered on compensation for so VERY long and the people into whose hands parents deliver their own children, to public unionized workers as a phylum. I mean, since we’re talking politics now and not constitutional law and the Supreme Court.
The teachers’ compensation goals can be achieved (and are) assisted by energetic public support without also either affirming or overturning Abood. If Abood were overturned and Justice Alito were to dance a jig, I suspect that teachers still would enjoy quite substantial popular support on compensation, mostly because their demands in this area are both reasonable and just. Not so sure the public equally supports union protections that keep incompetent teachers in their jobs or even on a payroll and not productive … while forcing non-member teachers in right-to-work states to chip-in to pay for those efforts. And I definitely question the support behind public-sector unions generally, and for legal protections that allow them to charge those who disagree with their political positions for defending them; or to support liberal political candidates generally.
Of COURSE “social legitimacy” is key to the Court’s eternal efforts to retain the trust of the people in its rulings and its general legitimacy. There have been few times in our history …
3
… when the Court has not been mindful of the need to not get too far out in front of the people on a highly contentious issue – which is why even Justice Ginsburg has expressed doubts that the abortion issue was sufficiently ripe to have ruled as the Court did in 1973’s Roe v. Wade (which I personally strongly support, as I’m sure she does personally, as well). But “social legitimacy” is not tied to one side’s ideological convictions – it is tied to the general consensus among ALL the people.
To suggest that the Court’s general legitimacy hinges on its defense of the power of public-sector unions to charge those non-members who work alongside their members but who may object to contributing to a kitty that helps get political representatives elected whose positions they patently reject … is not a compelling argument to make. And suggesting that what is at stake are funds that are explicitly excluded from such political proselytizing suggests innocence of simple accounting practices.
The argument that exponents of this position SHOULD be making is that no systemic protection is free of down-sides, but that the social interests of such a protection in THIS case are so compelling that they outweigh in importance the negatives that inevitably freight them.
It’s a tough argument to make, and an even tougher one to win; but it’s the only legitimate one exponents have to make that isn’t clearly and purely ideologically self-interested.
2
Mr. Fallon's emphasis on legitimacy in Constitutional law is a theme that was popular among legal scholars of his generation. Charles Nesson, a specialist in the jury trial system, argued that, however unjust the system, it derives its legitimacy from public confidence. Perfect justice is impossible but unnecessary. As long as the public believes that the system adequately delivers justice, it serves its purpose.
And Richard Parker, a Constitutional scholar, argued that Constitutional decisions need only satisfy those of the relevant community, and that Constitutional law has no higher purpose that should affect decisions.
All three of these aging men had a faith in the general public that made sense 30 years ago, but no longer does. Public knowledge of the legal system today comes from the media which, in turn, relies on legal experts who explain the merits of court decisions. If they are told that a decision makes no sense, the public believes that. So the confidence of the public depends on legal experts, and that is who the courts must address. For example, ordinary people had no idea what Citizens United stood for. The widespread opposition to the decision arose from the dissatisfaction of the legal community.
With regard to the union decision, I believe that the legitimacy of the decision will again be decided by legal experts.And so it is like every other case and has no transcendent influence on Court legitimacy.
"The Conservative Pipeline to the Supreme Court"
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-...
This court is ideological by design. They support power and wealth whenever they can, particularly the Republican variety, legislating from the bench. Problem is, even when the majority overcomes the legal obstacles requiring a huge majority to exercise democracy, these people will be using their power to support inequality.
2
They ended segregation. They created the right of all the poor to a free attorney. They ruled that our public schools must educate undocumented children. They created the right to marriage for gays. They legalized abortion. They upheld Obamacare and Social Security. They ruled that the government has no power to stop newspapers from printing whatever they want. They required the police to advise suspects of their rights before questioning them, And on and on. What are you talking about?
SCOTUS legitimacy?
It lost my confidence with Bush v Gore, when it handed the presidency to the majority's political party (a decision they declared would not be a precedent!!) and my confidence in it has gone downhill since.
The appointment of Gorsuch by the Republican majority in the Senate (even thought they do not hold the majority of the popular vote) demonstrated further the sociological illegitimacy of the court, now further compromised by a clearly political appoointee.
A Court I once held in the highest regard, I now consider: Politicians in robes!
20
The Florida election of 2000 should have been nullified for the blatant conflict of interest of the Secretary of State who ran the election as Bush's Florida campaign manager. That would have cleaned up the way states run elections.
4
Legitimacy is a fundamental matter. If the Court lacks legitimacy, it isn't that you don't like it. It's that you feel free to ignore its decisions. If you're there, you're a revolutionary. If you just dislike it, you're a back seat driver.
1
Ms Greenhouse. Can an argument be made that failure to compel objecting employees to pay for non-political representation be an implicit tax imposed by the state on its employees?
This is the most activist Court in history. Roberts will go down in history as Taney has, disgraced. After Bush v. Gore, Shelby County vs. Holder, Epic Systems vs. Lewis (the arbitration case,) Masterpiece Cakeshop and so many others, there is little hope for the unions. This is all about politics, not about Constitutional Law. Overturning unanimous precedents is not a problem. Anthony Kennedy is not a "swing vote- he's an arch conservative who masquerades as a "moderate." At their confirmation hearings every one of these jurists states that he or she adheres to precedent and the principle of stare decisis. Some lie. That's perjury, but they get away with. This decision is the culmination of what was started when Reagan fired the air Traffic Controllers. The unions will be decimated and the plutocrats will score another victory. By the way, dues cannot be used for political purses, that why unions have COPE funds that survive on voluntary contributions. As Linda Greenhouse states, the 1st amendment is being used as a bludgeon to "deregulate." What a warped misinterpretation of the Constitution, but one that is not unexpected from five jurists who abhor democracy, civil liberties and justice. Sadly, generations will be saddled with these decisions.
19
"It’s no secret that public employee unions skew Democratic."
End of case. This is stated as if it is an incidental concern. It's not.
If unions were smart they would have fixed this problem decades ago. They have zero interest in fairly representing the political views of all their employees. It is corrupt to the core and needs to be stopped. Few people believe that union dues not intended for political purposes aren't leaking into that realm. How much does it really cost to negotiate a contract?
4
This is not a secret. Democratic policies favor the workers while republicans favor the 1% as trump and bush tax cuts for the wealthy demonstrate.
It would be crazy to vote for politicians that want to see you destroyed.
5
As the late William Brennan pointed out (and enjoyed demonstrating), the key to understanding the Supreme Court is the number five. Five Supreme Court justices can decree that the Constitution and the law mean just about anything they want.
Unfortunately for the Forces of Light, it appears that the Forces of Darkness will have five votes on the Supreme Court for at least the next few years.
13
Regarding the final point vis a vis "sociological relevance,"
to me it seems a bad argument as by itself in cases that
clearly deny basic civil liberties it could be used. A far stronger
sociological argument, however, was used to rid us of segregation
in that by definition it argued that segregated schools assured
the inferior status of Afro Americans.
4
Yesterday Trump torpedoed the continuous claim by Republicans that "elites" are teachers, actors, researchers, etc.
As Trump said, "Why are they elite? I have a much better apartment than they do. I’m smarter than they are. I’m richer than they are. I became president, and they didn’t.”
Everyone that opposes the Republican attack on education needs to constantly throw Trump's definition of elite in the faces of those that keep using that word to redirect anger from those that actually make policy to those who try to make the world a better place.
The actual elite, as Trump points out are those with the most money and the most power.
The true elites in the world are the global billionaires and mega rich, like Trump. The few thousand people in the world that own more than half of all the world's wealth are the elite. They have controlling shares in the world's corporations, including all of mass media, and they make most political donations. (Notice that Bloomberg is donating more this year than all of the teacher unions combined two years ago, and he is outspent by big Republican donors.)
The world economic system was designed by, for and of them. Their rapidly increasing wealth, while most people are lucky to tread water, is proof of that.
The people that Republicans constantly insult with the label "elite," generally have little money and little power. Even famous actors don't have nearly the money or power of true elites.
Capitalize on Trump's strategic error!
8
Supreme Court cases such as this one tend to make my head explode. It's unclear to me what the devil paying one's fair share of the cost of a benefit has to do with the 1st Amendment to the US Constitution. Freedom of religion, speech, press, assembly, and petitioning the government are all granted citizens in that first amendment. How do dues run afoul of any of these 5 liberties? Is it really an unconstitutional infringement on one's freedom of speech to pay some proportional sum to cover the cost of the benefits one receives from the efforts afforded one by a union? I can't fathom how? Perhaps, and only if, a union comes to represent a workforce AFTER one chooses to join it, then one may have a case. But if one joins, knowing the circumstances of one's employment, where is the injury? The language of the Constitution is such a blunt tool!
7
It's unfair that this issue should be brought up for solution before the Roberts Supreme Court, which is anti-middle class and anti-workers' rights. Consider the court's Citizens United decision, which held that corrupt money given by corporations is free speech. This decision has made it possible for the GOP donor class - mostly oligarchs - to flood the electoral process with their dark money. The decision (Citizens United) in effect did away with one-man-one-vote, which is the law.
The Roberts court appears to be just an extension of the GOP congress, and makes the separation of powers a political joke.
12
It seems that, increasingly, the conservative justices are turning to sophistry in order to address their longtime bugaboos. It's well past time we stopped abusing the First Amendment.
I am a proud member of a union at a respected university. You can have my collective bargaining rights when you get them from my cold, dead fingers.
8
The problem, as I see it, is that public employee unions get involved in politics. How would you like it if your dues went to a union that endorsed Trump? Perhaps you would not be happy.
4
If you actually read this article, it makes clear that the portion of dues all employees pay cannot be used for political purposes. They only contribute to the cost of collective bargaining which determines their pay and benefits.
15
arguably this SC lost legitimacy after Citizens United, after that it was quite readily apparent it was just a tool of corporate power and oligarchs, rare is the occasion when it rules against those interests, once you understand what a case is about, like 95% of the time you know exactly how they will rule
7
The best outcome would be to outlaw public sector unions altogether.
6
I wonder how the conservatives on the Court, including Fake Justice Gorsuch, would react were a Democrat-controlled Congress get a law passed abolishing closed and union shops, but also making the union contract apply only to union members who pay full union dues.
Under such a law, any employee not joining the union and not paying full union dues would be on their own. They'd be free to negotiate their own employment contracts, free to negotiate their own health benefits, free to negotiate their own retirement benefits, free to negotiate their own grievance procedures. The union would negotiate only on behalf of its members, members who pay full dues. Would not that solve the problem?
On the other hand, we could rest assured the conservatives on the Court would strain to find a reason to let union members get free ride. Perhaps they would say that the resulting discrepancy in negotiating power puts a gun to the head of freedom-loving workers and forces them to join the evil unions. Such economic blackmail would make the freedom-loving workers complicit with the union and its thugs, they might claim.
Given the mandate of the conservatives to destroy unions, we would have to expect the most shameless contortions from them to save America from unions.
9
How incredibly wrong and misinformed can one person be? Has anyone explained to Greenhouse that Illinois and Chicago in particular have the worst debt crisis in the United States? That in Illinois, the teacher unions are all powerful, assisted in their corruption by the Democrats and the Madigans? Yes, that's right, Madigans (plural). Nepotism also reigns in Illinois.
Meanwhile, Chicago continues to show a net loss of population as tax payers flee the state. Anything that breaks the backs of the teacher unions in Chicago should be cheered, not debated.
5
How is it Nepotism that father and daughter Madigan have been elected to their posts, one in the legislative branch and the other in the executive branch? That's not what nepotism means.
The Supreme Court surrendered their moral high ground in Bush v. Gore. And since then every nomination (excluding the failed one of Harriet Myers) has been strictly on ideological grounds. The Senate's failure to vote on Garland and its removing the filibuster to approve Gorsuch put the final nail in this.
I therefore expect here nothing more or less than a party line vote.
And, I would expect that when the Democrats control both the White House and the Congress, if the Court, say, contains seven conservative justices, they will decide to expand the bench to 15.
Sic transit gloria mundi.
13
That's right. the Democrats are already planning to pack the court.
1
Hate to break this to you, but the Republicans are far ahead of the Dems on packing the courts, including the Supreme Court. They’re actively working on it at this very moment. See https://www.nationalreview.com/2017/11/gop-tax-bill-should-expand-federa....
As noted Constitutional scholar and all-around champion of fair play Mitch McConnell pointed out when he was unpacking the Supreme Court after Obama dared nominate a replacement for Scalia, the Constitution does not fix the number of Supreme Court Justices. It’s been 5, then 7, then 9, then 8 after McConnell embargoed Obama’s nominee. Eight is enough, said McConnell.
Fine. But if 8 is enough, 11 would be even better. Hopefully the Dems will be even more aggressive and shameless than the Republicans. Pack the Supreme Court, pack the lower courts, and let the Republicans rant and rue the day they decided to reduce the number of Justices to 8.
If eight was enough, 11 would be better. And you can just deal with it.
We may be living in a new age. It seems to me that Trump and the GOP have discovered that they can get away with illegitimacy. All it takes is billions of Citizens United corporate campaign donations and a propaganda news organization, and they can block even minor gun control measures (supported by the majority of Americans), strangle access to abortion (supported by the majority of Americans), threaten DACA (supported by the majority of Americans), and stymie single-payer health insurance (supported by the majority of Americans).
The GOP don't need no stinkin' legitimacy.
10
The sheer cheek of these people to deny that anyone is harmed by their denial of standing to anyone to challenge faith-based legislation under the first amendment bar to legislation respecting "establishments of religion" is beyond contempt. It is abjectly despicable.
5
Steve-- You are usually correct. Establishment of religion, in government, is abjectly despicable.
3
If these "Christians" honestly followed Jesus (the Gospels, not Paul, who was an ideologue who believed in slavery and the inferiority of women) they would do a lot better. The absence of spirituality in the "god" these people support is an argument against the existence of any deity. If there were a god, there would be more consequences for evil. Rewarding evil seems to be a favorite of our big "evangelists", since it's so profitable for them: extracting the widow's mite. Marjoe exposed it: "These people lead miserable lives, and suffer in silence because they know they’re going to get their reward in heaven. A preacher is a man who has been blessed by God on Earth. ***If he doesn’t drive a Cadillac, they don’t think much of him; God must not favor him. He’s got to look good, feel good and smell good.***"
2
Susan--Gotta have those multi-million dollar jets, so the prosperity group don;t have to fly with sinners. their followers are the biggest dopes in the world. Its hilarious how they hand over their money to charlatans. Who knew God needed money? Christianity is just one big senseless circus, like the tRump "administration."
1
The writing was on the wall when Mitch McConnell held up the ability of Obama to appoint a member to the Supreme Court on his watch. The present court is the fruit of the poisoned tree. It is purely political and will gladly do its bidding on a 5 to 4 vote. Just as Trump would delegitimize the Justice Department, congress has politicized the Supreme Court. See: RevolutionOfReason.com
21
This started with Nader voters in Florida handing the popular vote loser the Presidency, thus putting Alito and Roberts on the Supreme Court rather than 2 Justices more along the lines of those appointed by a Democratic President, such as RBG
11
Too bad Obama and the Democrats sat by and let that happen.
Their response to that constitutional crisis was to write a couple of op-eds, and wait for Hillary's inevitable win. Oops.
The next Constitutional crisis will probably be far more dangerous. Will Democrats have learned anything by then?
1
The 4 GOP Supreme Court Justices as of 2016 wanted to kill unions. The newest one, Trump pick Gorsuch, is a right wing radical extremist who will join them. The decision is preordained. In the end, these extremists don’t care if the destroy unions by a 5-4 vote. All they want to do is keep worker wages and benefits down, and strip unions of any ability to politically organize.
10
For the plutocrats, the evangelicals’ desire for conservative justices on the Supreme Court is a perfect smoke screen. Keep the focus on the hot button issue of abortion while steadily destroying worker protections and rights.
6
There is a really big reason that the Republicans wish to control the Court, that is simply the fact that control of the court can and does push the Political Party's agenda.
The Court's history has always been tinted through the Judge's unique spectrum of "Justice". Almost no Judges, share the poor and marginalized view of life.
Mitch McConnell knew that his blockage of Obama's choice would certainly give control of the Judicial Branch for decades to the GOP.
This also includes the hypocritical Evangelists, they too knew that control of the Court then would sanction their religious agenda as dominate law of the Nation.
The Republican Party now controls all three branches of Government, they know that for decades they will control the entire American agenda.
12
After Bush v Gore and the Garland theft, I believe the legitimacy of the Court has been decided. Legitimacy departed a long time ago.
26
If you help Trump delegitimize the courts, then who can hold him accountable?
Trump off going to sleep with this op-ed under his pillow tonight, hoping it will be replaced with his coronation in the morning.
If they can convince the Public that rule of law is illegitimate, then they can ignore the law. Don't help Trump delegitimize the courts, the rule of law, and our Republic.
If they can do that, we will have capitalism without democracy, like they do in Russia and China.
Once again hypocrisy reigns with the conservative "activist"judges like Alito who make conservative policy decisions instead of legal decisions. I remember when republicans always cried foul and ranted against activist judges when a case did not go their way--even tho many of those decisions were led by Justices appointed by Republican presidents. When I can forecast with great regularity and accuracy how cases are going to be decided political ideology runs the court.
4
Alito already had his majority opinion written on this matter and was only awaiting a case name to insert in the blanks. This is not justice, but naked partisanship.
7
This is a predominantly Republican Court. That much has been clear since Bush v. Gore. Justice Alito's fondest wish is to help his party rule America. No one thinks any longer that the Roberts Court is impartial politically. A 5-4 decision in Janus will merely confirm what everyone already knows. And the illegitimate appointment of Gorsuch merely speeds the day when no one any longer regards the Roberts Court with the respect due to the top level of a formerly independent branch of government.
6
The Constitution is not a suicide pact.
By killing the agency-fee system, the conservatives seek to use free riders to make collective bargaining impossible. Without collective bargaining, public employees will have no greater job protection than any other employees. But since private sector employees develop skills that transfer easily to competitors, or to development of small businesses, only the incompetent and fools would willingly take public sector jobs. After all, public sector jobs are about providing needed services, not about making money.
Is that really what we want for our teachers, our police, and other public servants? Only the dregs of the labor market?
Conservatives would turn this country into Somalia.
12
As soon as I read a clause formulated like, "states can require public employees who object to joining a union to nonetheless pay their fair share of the union’s costs of the collective bargaining from which all employees benefit," I know I'm dealing with a person who thinks they know what is most beneficial for everyone. This is the mind of neo-marxism, an ideology of knowing what's best for people, therefore forcing them to pay their "fair share," that ultimately lead to 100 Million dead people in the 20th century. Somehow, miraculously this passes for compassion in universities and the opinion pages of most news sources. Coercion is never compassionate, and assuming that it benefits them, when this case is really about people who do not want to contribute to the Democratic party, which is where a vast majority of these funds go. People rail against the NRA as a lobby, but it is probably less than 10% of the size or influence of the lobby that represents union workers, here government union workers. It's not even in the public sector, so you know most government jobs do not require hard work. So although people who speak like this pretend to be the compassionate ones, they support the most murderous ideology of the 20th century, and we on the right are no longer going to let them get away with calling this "compassion" anymore. Telling people how they benefit is less beneficial than supporting the economic freedom to do with their money what they see fit. Compassion!
1
" I know I'm dealing with a person who thinks they know what is most beneficial for everyone."
So, you are saying that public employees who do not join a union do not want higher wages and better health care and working conditions?
OR: did you not read the editorial, which clearly explains that the non-union members pay ONLY for the costs of collective bargaining and do NOT contribute to the campaigns.
3
The logic here is flawed regarding public support for public sector unions. The public supports teacher, but not necessarily their unions. The two are very different things...teachers unions actually represent the worst aspects of public education.
2
I have no doubts that SCOTUS will rule against unions. SCOTUS's concept of 'common good' is highly suspect given their Citizen's United ruling. SCOTUS' recent recent reversal on the 1992 Quill ruling shows their lack of foresight. As stated today... “It is unwise to delay any longer a reconsideration of the court’s holding in Quill,”...A case questionable even when decided, Quill now harms states to a degree far greater than could have been anticipated earlier.”
I fully anticipate that 25 years from now we'll have a similar mea culpa from SCOTUS about Citizen's United as well but by then the damage will again have been already inflicted.
9
Sorry Linda, but I wouldn't bet on the current SCOTUS doing anything in that might help public employee unions. Their hostility to workers is apparent when they vote in favor of arbitration over class action. Employers will always come before workers with this court, and unions that support Democrats are doomed until there are liberal justices to replace the conservatives...not in my lifetime.
11
There is no consistency even regarding the applicability of arbitration clauses to litigation.
After Bush v Gore I have assumed all Supreme Court decisions are basically political and not legal in nature. This cynical interpretation has not been disappointed over the last decade. Topped off with the seating of Mr. Gorsuch my respect for the court system is entirely extinguished. As our president demonstrates daily, following the law is not important. Only not getting caught or blamed is what matters.
19
We’ve heard for a long time that Roberts is concerned about his court’s reputation. But he just got thru joining in a decision to legitimize malicious voter disenfranchisement benefitting his Republican Party. I’d say the court’s reputation is already pretty much shot, and that history will judge Roberts very negatively.
27
I didn’t think I’d ever call Ms. Greenhouse naive, but her suggestion that this Supreme Court will be influenced by “sociological legitimacy” ignores that major decisions in recent years have followed political lines, not sociological or Constitutional ones.
15
Why not appoint sociologists to the Supreme Court? Maybe five of the nine. Wouldn't that ensure more humane and correct decisions?
Outside the box, but think about it.
4
Supreme Court justices are evidently selected for their remoteness from real life.
1
First, kudos to Ms. Greenhouse for understanding the issue in Gill v Whitford - which can be thought of as individual rights (for representation in your district) vs collective rights (for a desired partisan balance in your state).
https://www.nytimes.com/2018/01/04/opinion/gerrymandering-supreme-court....
Given this, it seems surprising that she would make such basic errors in Janus:
1. Forced Riders - "... the specific rationale ...is the presence of free riders, who enjoy the benefits of having a union while refusing to pay for the bargaining efforts that won them." This relies on the "exclusive representation" provision in the laws of many states. And sure, the union should not be compelled to provide service any more than a member should be compelled to pay dues. We all have a 14th amendment right to contract. Now imagine if the state ordered everyone to buy a car from GM. But a court later ruled that people could abstain from payment. GM would be rightly aggrieved. But the problem is the coerced purchase in the first place (forced riders) !
2. Politics - She is correct that Janus focuses on politics - but not the way she thinks. "The point of the Abood decision, of course, is that workers who object to the union’s political activities don’t have to pay for them. " As in Gil vs Whitford, these are individual rights. A majority seeking union representation can no more compel an individual to support a union than they can require belief in a chosen religion.
1
Aren't corporate shareholders a class that needs to be treated the same way you say corporate employees should be, left to their own devices how to spend their dividends on politics?
5
The analogy between the state forcing everyone to buy a certain car and paying for a union that negotiates your salary is the kind of logical strain I've come to expect from the right. Twist logic all you want, but this decision is about greed from the top, and an ideology that says that workers should be kept down.
Unfortunately, the Supreme Court is illegitimate as long as Gorsuch sits on it, Janus or no Janus.
5
Ms. Greenhouse titled her article as "A Question of Legitimacy Looms for the Supreme Court". She is appealing for the "Conscience of Conservative" in either John Roberts or Kennedy to rule in favor of the teachers' union as Roberts did in favor of Obamacare and temporarily slow down the evisceration of it as we see it's happening now under Trump. Yet it is precisely the rank and file of the teachers forced the temporary retreat of the forces against them, and a ruling against them will not derail the union if the rank and file close rank and understand what's happening and voluntarily pay their dues instead forced by law to do so. The real question is whether the Constitution as it's written and almost impossible to change is relevant for modern society and drag U.S. back against current of history.
Ms. Greenhouse's articles are uniformly interesting and full of insights. It seems to me that the legitimacy of the SCT as a non-political institution has been sliding slowly downward for many years and that the pace of decline accelerated noticeably when Republicans refused to even conduct hearings for Merrick Garland. In today's world, the extreme politicization of the SCT is probably inevitable. How sad for us; yet another once venerable US institution in rapid decline.
22
Questioning legitimacy should be beyond the pale. The only thing holding us together is broad agreement to accept results of agreed-upon processes as legitimate, even results we hate. That bright line stands between us and anything-goes chaos. Trump is already eroding it, with his questioning of election results and FBI/Justice conclusions. This is so not the time to help him.
1
When they don't even understand that "establishment of religion" means "faith-based belief" and "free exercise" means "voluntary participation", they aren't worth a hill of beans.
1
Sure, overturn Abood, but if the free riders don't have to pay dues, then they get no benefit from collective bargaining. They can negotiate salary and benefits all by themselves. And they get no protection from the grievance process or the union pension system either.
22
This is the correct answer. But the general attitude of Alito exemplifies a much bigger issue. When I was a child and into my twenties, I disliked unions on the ground that they raised the cost of things to consumers. But that was when I was a child and didn't realize the enormity of the power of employers to extract work for slave wages from people desperate for a job. I am a thoroughgoing capitalist, but any capitalist should learn that the health of a capitalist economy depends not on the wealth of executives, but on the wages of workers. We seem to have lost sight of this basic economic law that is as certain and powerful as gravity. Our failure to deal with the catastrophic, continuing concentration of wealth in our country is by far the most serious enemy of this country's future. Compared to this problem, the bogus "threat" from North Korea, or any other perceived international threat, is nothing.
8
The basic premise seems to be that socialism will not thrive unless people are forced into it. Even if (hopefully when) Janus goes against them, unions still have a lock on the workplace for ALL workers. They still control the labor contract. They still have a monopoly. Folks opting out still don't have a choice to work under different conditions, employers still don't have a choice to hire non-union workers side by side with union workers. There is no real harm coming to the unions except a potential loss of funds. And if they are doing a decent job, that loss will be small. I think that it become a specific opt-out clause as well, the default when you are hired is that you contribute union dues.
Easy answer would be to allow unions to compel dues IF AND ONLY IF they divested themselves COMPLETELY from any kind of public endorsement of policy or politicians, donations, advertising, etc. That is, make them what they were intended to be in the first place: there to negotiate working conditions and nothing more.
3
Shouldn't your rule apply to corporations too, so shareholders may decide what public policy to support on their behalf, or spend on something else?
20
If unions need to divest from public policy and strictly adhere to work place issues then so should employers do also. But as noted since the rise of St. Ronnies brand of conservatism employers have been actively been involved in public policy to the detriment of workers. The legal fight against unions is as Ms. Greenhouse states is basically to define democratic leaning organizations. Republicans have made no secret of this strategy. But the socioeconomic outcome has been disastrous for workers. As companies have enjoyed record profits, CEO compensation soared, by a 1000 little cuts and changes to the laws workers are receiving less of the share of the fruits of their labor. From changes in bankruptcy laws, finance laws, labor laws workers have seen a generation of stagnant wages. It does not need to be this way.
13
The difference is, if you don't like your corporation's public statements, sell the stock.
An employee has to quit, a far harsher cost that is unfair to impose.
And to conclude, most laws are designed to achieve a balance of power, and labor laws in particular were written to allow employees to peacefully exert collective power over the terms and conditions of their work, balancing the employer's need for their work against their need for respect and good wages and working conditions. The politicization of this area, if the Court goes there, seems to be to put a large thumb on the scale in favor of the employers. It's not so much a sociological issue as a fundamental view of the purpose of the rule of law. Laws should balance competing needs and arguments to establish peaceful ways of resolving disputes. If they do not do that, then we can expect disputes to move into areas which may involve actions which are less disciplined and potentially more destructive, such as state-wide strikes. What is being done to refugee children is a good example of what happens when rational laws are ignored or changed in ways that destroy any balanced approach to resolving disputes. This Court needs to be very careful to assess all the consequences of any changes they may make to well established laws.
21
I agree with your assessment of the importance of balance and peaceful resolution of conflict. I would go further though than worrying about state-wide strikes. The history of unions is replete with examples of violence by workers and management including murders and assassinations in disputes. From my perspective this has mostly been when management held all the cards such as the robber baron period of American history. Since we are rapidly moving this way I anticipate a rise in labor extremism that will unfortunately kill a lot of people over the coming years.
1
I have been thinking that teaching is a profession which our underemployed middle class people will be taking up. There are awful things about it but if you are good at it and are able to live on the salary, it would employ your energy and enable you to contribute to your community.
In the past, other professions have been more professionally rewarding. But teaching remains a 1:25 proposition, won't be automated out of existence.
Go, public unions!
6
Linda has clearly described the situation and the role of the Supreme Court. Unfortunately, her analysis and the addition of Gorsuch leave little hope for a positive outcome. The stage is set for further dimming of the court’s reputation for common sense, or the rule of law.
41
While the public seems to be appreciating public employees, especially teachers (long overdue), it is not the public that will be deciding this case. If recent decisions are any indication, SCOTUS has created a new version of the First Amendment which allows anyone with an opinion (i.e. bakers who don't like certain types of marriages). to trump the rights of already recognized minorities. The heck with precedent; let's use alternative theories of law is the new direction.
19
This pathetic body of phonies doesn't even get that "free exercise" means voluntary. Nobody has the right to force their religion on others.
The Supreme Court's opinions are so archaic and so far behind the people of the United States.
The basic premise, that I "enjoy" the benefits of the union negotiation, is flawed. My union, CTA, routinely negotiates against my best interests as an educator. Why do I have to pay for a malicious organization that limits my career potential?
7
If you would give some examples, it would be helpful.
3
Be specific. Just how does the teachers union do that.
1
Feel free to give up your salary, health and pension benefits anytime you wish.
3
Sociological legitimacy is sui generis the basis for any law. Law is at the apex of the social control pyramid, starting with shame and ostracization, moving up to norms and conventions, and then to laws. The Supreme Court has become so politicized that it now fails to reflect the social consensus of justice instead ratifying political partisan interests. In essence, it has become an institution of the plutocrats, not the people.
19
To continue. Union are elected by the majority of the employees in one bargaining unit, which may be small or large depending on the employer's jobs. An election may be triggered by a substantial minority (I think 30%) of the covered employees in order to select a union, or, near the end of a contract (generally every three years), to throw out a union or select another union. So unions have to answer to the wishes of employees in order to continue representing them. As to split fees cases, the requirement that employees pay fees for the bargaining services of the union is to ensure that no one can get a free ride for the union's advocacy of better wages and working conditions for all of the employees they represent. If a union negotiates different working conditions for some (two-tier wage rates are one example), it cannot be done because some employee pay dues and others don't. If you eliminate these rules and let unions ignore those employees who don't pay dues, you create a divided workplace which could lead to huge disputes at work - allegations of favoritism, race, religious and gender discrimination etc. The rules the way they have developed are rational and designed to allow employees to bargain collectively for better wages and working conditions without inserting politics into the workplace. The Supreme Court should support this rational rule of law.
6
I believe you miss the point. "Unions are elected by the majority of the employees in one bargaining unit ...So unions have to answer to the wishes of employees in order to continue representing them."
There's no doubt that you have a first amendment right to assemble (join a union). But such rights are inherently individual - and cannot be forcibly abrogated to a majority. If a majority of workers wished to practice one religion (e.g. Christianity), would this compel the remaining workers to follow the same faith ?
There is only one forum in which individuals willingly defer to the will of the majority - and that is government. As the plaintiffs in the recently decided Gill v Whitford did not understand, very often in a Republic, your government representative may not agree with you because he was chosen by a majority of which you are not a part. However, our Constitution provides us a host of safeguards which preclude the majority (acting through government) from imposing their will in all facets of life. Among these is the freedom to contract with whom we choose (by mutual consent).
Unions are not the government. (Nor are they the employer.) They are a service provider. And while you are correct that they should not be forced to provide representation when it is not compensated, the fault her lies with "exclusive representation" statutes - often inserted at the unions' behest.
Sociological legitimacy is considered in traffic law, i.e., a speed limit set too low or a needlessly restrictive stop sign. Drivers may not respect these traffic controls because they go too far, and hence lose respect for other controls and behave less lawfully on the road in general. But if it’s the Supreme Court making the rule to effectively eliminate collective bargaining, what corresponding actions do the regulated employees rebel against? Being employed as teachers? Or creating a new union?
3
Somehow, I must have missed Ms. Greenhouse's column on the legitimacy of Justice Breyer inviting a closer look at the death penalty. Nor does she mention in this article Justice Kagan's roadmap to the plaintiff's in the Wisconsin "gerrymandering" case. How are they any different and would they taint the legitimacy of the court should they come back. Presumably, Ms. Greenhouse knowingly omitted these examples as they don't fit her leftist narrative.
Personally, my feeling is people should be able to opt out of the unions - but if they do so, they would need to make their own "deal" with their employer. It may be better or worse than the deal one might get with a union. If these unions are so beneficial, then they should have no trouble attracting members based on the merit and value of their membership. However, if all they really turn out to be is money laundering operations for Democratic politicians, then they should wither on the vane.
3
I think you missed the main argument.
It's not that Justice Alito invited a closer look, but rather the procedural machinations and contortions that the Court allowed in this particular case in order to get to the point where it could address the issue.
Calling something a "leftist narrative" doesn't make it so.
11
“Personally, my feeling is people should be able to opt out of the unions - but if they do so, they would need to make their own "deal" with their employer. It may be better or worse than the deal one might get with a union.”
I think you misunderstand the fundamental issue, which is that the value of the union to benefit workers is dependent upon its ability to compel collective bargaining - which of necessity requires strength in numbers of membership and funding. The most concrete example is the ability to create a “strike fund”, so that employees have the power to walk off the job if their job demands (be they safety or compensation related) are not met. You seem to suggest a union exists independently of employees, who should be free to ask “what can you do for me that I can’t get from the employer alone?” The answer to that question lies in compulsory membership. And, that is totally unrelated to your “money laundering” allegation related to political activity. (Are you aware of the financial contribution requirements on corporations for participation in Chamber of Commerce “money laundering” activities?)
2
There are two sorts of lawyers, those that believe the following and those that do not:
" We the people of the United States, in order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..."
Unions do promote the general welfare.
21
As a lawyer, who worked in many factories and other blue collar jobs along the way, I’ve learned there are two types of people: the company man, and rank and file workers. Only a company man opposes unions, because it costs the company man some of his precious gold and benefits the rank and file workers for whom he has no concern except for his insistence on getting “an honest day’s work for an honest wage” - which the company man defines as paying as little as he can possibly pay and still recruit a work force.
9
Unions do promote the general welfare. You may not like their tactics but they do have an important role. Since the decline of unions wages and benefits have stagnated. This is not totally due to competition or out sourcing. Look at company profits and upper level compensation. They are rolling in dough so much so that thanks to the tax cut they are buying back stocks. The share going to workers is a pittance.
6
Every writer here who uses "liberal" as some kind of put-down doesn't even know what liberty is.
The boiled down argument is that payment of union dews is undemocratic, somebody might be forced to do it (like paying taxes even). But the real counter-argument to this is that big money and big business is also not democratic. The balance between labor and capital which from the Great Depression became one of equals has become skewed to capital. But then the public has drunk that kookaid, big money has cast labor and its unions as an evil, and now the last refuge of unions is in the public sector...exposed.
10
Gorsuch has already proved to be incapable of discretion and borders on the incompetent as a Supreme Court justice. Alito and Thomas are diehard right-wing conservatives. Kennedy seems to be on the fence a bit, but is essentially conservative for the most part. The "hope" for those who seek some sense of justice and fairness is in Chief Justice Roberts who may, perhaps deep inside, have the presence of mind and fortitude to "see the big picture" as to what is going on in this country. He did so with regard to gay marriage and perhaps he has a sense of which way the overall "wind is blowing". Then again, the court has recently ducked decisions with regard to gerrymandering and unfortunately seems to waiver on religious/first amendment issues. The court has always, always been political. It is no different now.
10
"Sociological legitimacy," has no meaning to the Robert's Court. The only legitimacy they are concerned with, is their own appointment. From there, they can legislate with impunity. Extreme right wing ideology, has taken over all three branches of government, and all but the elite will suffer. With the down fall of the working class's place at the bargaining table and the courts incessant desire to keep people from the polls, the future looks bleak.
14
I would hope that Ms. Greenhouse isn't endorsing the concept of "sociological legitimacy" - defined as having the public support for a decision. That's the concept that required waiting for public attitudes to change before ruling in favor of same sex marriage, and it's also the concept that got us the Dred Scott, Plessy vs. Ferguson, and Japanese Internment decisions. Sociological legitimacy (e.g. public opinion) is what legislatures are for.
1
I believe you are misreading the concept. I believe the concept is "sociological legitimacy" for the institution, not any individual decision. And the concept is critical and has been under fire by Republicans since at least the Gore v. Bush decision in 2000, handing the election to Bush despite the popular vote or the facially legitimate argument that the popular vote in Florida favored Gore. The "sociological legitimacy" of the Supreme Court has been further damaged by McConnell's game in 2016 not to permit a vote on President Obama's Supreme Court nominee Merrick Garland, a judicial centrist, for purely political reasons. And the "sociological legitimacy" of the judiciary is under attack as we speak, with the Republican Senate approving Federalist Society judges by the dozens, some not even remotely qualified; by waiving rules they themselves used to block even centrist Obama selections.
When the answer to the question of why the Supreme Court took a case with long established precedent is 'because we want to overturn a decision that cuts against our political party and we have 5 votes', then the Supreme Court loses "sociological legitimacy" and we know at least 5 justices are political hacks. Which calls into question the institution and by extension the rule of law.
11
C'mon. I'd say the liberal justices, more so than the conservative justices, are more prone to disregard the words of statutes and the Constitution to render what they think is the "right" decision based on their ideology (ignoring the written law).
5
There are many examples of the conservative members of the court, and conservatives generally, being perfectly happy to stray from the written word when it suits their interests. For example,
Conservatives seem happy to say that a "well regulated militia" means any Tom, Dick and Harry buying assault rifles at a gun show.
The conservative members of the court were very willing to find First Amendment religious freedom rights apply to corporations in the Hobby Lobby case, a case which, regardless how you feel about the merits, certainly includes words not in the constitution.
1
Agree. Some of the justifications you see from the left leaning judges are downright scary. Some of the right leaners as well. Gorsuch and Kennedy seem to have their heads in the right place.
It is not up to the court to decide if a policy or law is good or bad, only if it is constitutional. It is up to congress to fix or change 'bad' laws and 'bad policy.' NOT the courts.
Kennedy seems to weigh in on the side of personal freedom is there is an debate. Which is why, over the past decade, he has been the favorite some of Libertarians and whey an organization like CATO has the Armicas Briefs on the winning side in most 5-4 Kennedy decisions. Voting for gay marriage AND citizens united shows this clearly. Unless you can show real harm (not what ifs) do not infringe upon personal freedom.
What do you think "Congress shall make no law respecting an establishment of religion" means?
A couple of points. First, many if not most of the commenters have a mistaken view of labor law. Second, the politicization of the Court has resulted in reversal of case law that has existed and worked well for many years, done, as nearly as I can tell, to advance the wishes and objectives of one political party. Labor law - first, remember that the labor laws arose as a result of labor wars in the 1930's. Employees were striking and rioting as a result of abusive treatment by employers. The result was laws meant to define the rights of management and workers in order to restore the balance of power between the two and restore peace to the workplace. If you think it is a bad thing for teachers to have to strike and shut the schools in order to get a pay raise, you should support unions. There the unions were powerless to obtain needed reforms for teachers, so the teachers took it into their own hands. Believe it or not, labor laws actually have rules on when employees can go on strike. If you think unions should be destroyed, what are you going to do when the fire fighters and police go on strike with no notice? As to unions and politics, if an employee objects, he or she pay less dues - only that part which covers bargaining over the terms and conditions of employment, not any dues for support of political ends. The part paid to support collective bargaining is actually calculated by what that service costs. If you think differently, you are wrong. (more coming)
21
Yes, and empirically, the states with unionized teachers have better education outcomes.
It was the unions that demanded that, instead of nepotism, teachers would actually have to have a degree in their field.
It's somewhat hypocritical of Ms. Greenhouse to criticize Governor Rauner for trying to achieve judicially what he can't accomplish legislatively since that is what liberals have been doing for decades, beginning well before the Roe decision.
That being said, even Franklin Roosevelt thought that public employee unions are a bad idea, as they are for any business that has a monopoly where the cost of union contracts can easily be passed on to consumers/taxpayers. Maybe the answer is to require that public employee union contracts be approved by the people paying for them - the taxpayer.
3
FDR might have changed his mind - or Eleanor might have changed it for him, if he could see many years of progress in economic parity and opportunity blocked.
With our public unions, things might definitely be cheaper in local taxes -- and we would add to the giant numbers of persons who work full time but cannot earn a living. They would also, other than political appointees at the top, be most likely contract employees, with the lack of stability that comes from that.
You would have - across the range of jobs - a Trump-like effect - where people are fired for their ideas, or for any random reason - and agencies are deprived of experience and expertise.
Also, in terms of responsiveness to public demands, school districts and public agencies have gone extreme tightening through in recent years to control costs in response to taxpayer demands - - - this is not an unresponsive area.
4
J. Waddell writes: "Maybe the answer is to require that public employee union contracts be approved by the people paying for them - the taxpayer."
But the taxpayers are the ultimate employers of the union, and they sometimes vote out of office those representatives of the people - be they school boards, city councilors, governors, or the President - when they find that the cost of government as felt through the cost or efficiency of the services, is too onerous. On the other side, those public employees are often applauded by the public for putting the spotlight on poor pay or inadequate support for the services that the public expects from government. It takes the collective voice of a union to do this. Gutting public unions hurts the public interest.
5
The decline of unions is the cause of decades of stagnating wages for most workers and the skyrocketing of wealth by the few people that own most capital.
Now that they have crushed most private sector unions, they want people to be jealous of public sector union employees, so that they can destroy those unions too.
It is simple divide and conquer strategy.
Anyone that wants the average worker to have decent income (even post taxes) should be encouraging the formation and bargaining power of unions. The attacked on public sector unions are a naked attack on wages and benefits for all of the 60% of Americans that actually work for a living, instead of owning stock.
The basic problem in the labor market is that workers far outnumber employers. This gives employers a strong advantage in negotiations that distorts the market from the ideal, which ends up pushing the wages of workers far below the most efficient level.
This has allowed employers to take a larger and larger share of worker productivity.
Over the last 30 years, productivity is up 40%, but worker pay is up only a few percent. All of the rest has been captured by shareholders.
Unions give workers an equal bargaining position, making markets more efficient
(One of the reasons why the true elite (see Trump's definition: the most wealth and most political power) are attacking immigrants is that immigrants are very active in forming unions and fighting for worker rights. They also make convenient scapegoats.)
3
What's to still find out? This Court exists to make corporate power supreme on all issues. Maybe they'll just devolve into a rubber stamp board of directors.
13
The courts nearly religious fanaticism over upholding contract law, and equal distain for anti-trust, your point is well taken.
The Supremes will do as they always have done - put political party before country.
11
Thank you as usual for the insights. In Canada we have a judiciary, in the US you have the corporate team.
No sense of shame the US. But then look who’s president.
23
Yes Democrats must realize that the problem is much bigger than Citizens United.
The Supreme Court has spent over a hundred years making corporations into petite and money into speech.
The only way to overrule the Supreme Court is with a Constitutional Amendment:
Corporations are Not People and Money is Not Speech.
5
Reading the headline, I thought this op-ed piece was about Merrick Garland, who should be sitting on the court right now.
It is about the much deeper politicization of the Supreme Court, but seen in the context of Trump & his minions' attacks on the Dept. of Justice, the court is just another institution of our republic falling from grace. But this one is different, because they are falling by actually truly failing. I have no doubt which way the Roberts court will rule on this issue.
12
Unfortunately, when Mitch McConnell decided not to give Obama's Supreme Court nominee a hearing, Democrats rolled over and played dead.
Democrats put far more energy into Dreamers and immigrant family separations than they put into saving their own Supreme Court Seat. No matter your argument for immigrants, Supreme Court Seats are necessary to help them, not to mention American workers.
To force a vote on that seat, Democrats should have shut down the entire government, chaining themselves to podium in the Senate if necessary and calling for tens of millions of people to protest in a show of raw political power. Instead, they let Republicans walk all over them, as usual.
And now, what are the Democrats doing to help unions? Where is the Cuomo op-ed on Janus?
The fact is that the Democratic Parry threw unions under the bus decades ago to court corporate donors, and have been losing power ever since.
We don't need a right of center party to balance the extreme right Republicans. We need a true left party.
Even people that don't follow politics can see that neither party is really fighting for workers. And Republicans are actually able to convince as many workers as Democrats, even though their policies are worse.
This is because Democrats are afraid to loudly advocate for good policy, while Republicans scream for bad policy as if they are on a muffin from God.
Leadership means talking strong positions. Anytime a Democrat leads, the Party leadership attacks them.
Linda I don't share your optimism. Since when has the Robert's court ever taken into account real world contexts and consequences? Think Citizens United, think the gutting of the voting rights act, etc. etc. For them the law is a abstraction, not a living thing.
12
60 years or so separated plessy from brown. In between were two world wars, the Great Depression and the pushing of the civil rights movement (not to mention the great black migration north where black votes started to matter). Undoing the damage of Thomas and Roberts et al may take as long, and with what momentous events in between?
6
A doubling of the entire release of fossil fuel CO2 to the atmosphere since 1800, for one.
4
The Business Roundtable in the 1970s took aim at unions. Ronald Reagan did his best to demonize and break unions when he went after the air traffic controllers. Nowadays, willing creatures like Gov. Scott Walker in Wisconsin do the dirty work of puppet masters like the Koch brothers. When people look at the causes of growing income inequality, they need to place the decline of trade unions near the top (along with numerous laws and policies that favor stockholders over wage earners). The fact is trade unions lift wages for all workers, directly or indirectly. While there was plenty wrong with the way a lot of union leaders operated in cahoots with ownership, overall a reactionary Supreme Court ruling would undoubtedly be another nail in the coffin of hard-working Americans.
14
What a joke Reagan was as a union president. Actresses came to him to beg for their careers when McCarthyites challenged their reading habits.
What Ms. Greenhouse is essentially saying is that only liberal decisions are "legitimate." I doubt if Professor Fallon can find a nonliberal decision anywhere that he considers "legitimate." It's not a matter of actual popularity, but popularity with a certain elite constituency, that confers "legitimacy." Clearly, "legitimacy" is just a code word for "Progressive," and the view presented here is that the Supreme Court is legitimate only as far as it is a vehicle for the Progressive movement.
9
What Ms Greenhouse is saying, is that the Roberts court is going out of it's way to make this ruling, just like they did with Citizens United. It is a political decision.
I often hear from the right, that the Judges should not legislate from the bench. This flies in the face of that argument.
7
Spoken like a true fan of the fascist dictator, Franco.
OK, Mr. Fascist, I'll bite.
Consider how unions achieve representation in the first place. There's a vote and a certification process. The unions would not be there in the places of work without the vote of those who work threre. The workers control the union leadership. If you were to present unionized workers with the option of a referendum, I am certain that they would overwhelmingly vote for the union to represent them. And under Aboud, if anyone doesn't like their union's politics, they are due a refund of that portion of their union dues which goes to extracurricular political activity.
Your legitimacy argument is bunk.
The Court today is a hodgepodge of sociologically diverse viewpoints vying for supremacy in a politically charged environment. Not unprecedented. Just look at how the Court changed during FDR's regime. Look at the evolving jurisprudence on civil rights, privacy, women's rights, gay rights and other issues. The justices' views can change over time as well. Unlike most countries, judges are chosen in a political process. They are not merely competent civil servants. Some, at times, are neither competent nor civil.
3
Some are deliberate insults to intelligence, like Clarence Thomas sitting as a stuffed animal in place of Thurgood Marshall.
Many years ago, as a young wire service journalist, I was "asked" to join the American Newspaper Guild. We had an open shop, so I didn't have to do so. But I understood well that by paying the dues and joining the guild, I would be better represented, and hopefully, would benefit from the union's lobbying in my behalf as well as those already paying dues. With the benefit of hindsight, I'm glad I did so.
9
Unfortunately, there are too many who do not see what you see. That will be enough to break the unions and keep future employees, like yourself, from what should be legitimate compensation.
1
Apples and Oranges issue as well. Teachers are paid as subcontractors to public institutions; they are Not public employees. Full time public employees are fundamentally different in status.
Each classification should have their right to organize preserved. Bonafide public employees should never have a right to strike or withhold their services in any way so long as they cash government paychecks, otherwise the private sector should await their imminent arrival.
Teachers voluntarily sign an annual contract with their school districts, in effect. Each side must fully satisfy those executed terms and conditions which expire at the end of every school year. They are independent contractors, who agree to render services to a public institution during certain months of the year. Bargaining for terms and conditions should be permitted individually (pay an attorney for example) OR represented by a union only if dues are paid-in. Mandating teacher dues should never happen. School districts should not be permitted to require a fixed set contract for all teacher contractors.
All contracted teachers should be converted to full time public employees after a maximum of 2 years service. Both parties and the general public would be better off in the long run.
There you have it = my 2 U.S. cents.
Then those nonunion teachers should work for a nonunion wage (lower) with no union protections. It's not particularly practical, though it might make for an interesting experiment. While the districts would tend to hire cheaper, nonunion labor, attrition for nonunion workers would tend to be higher (after all, the benefits are lower and they are easier to can for any reason at all). I think the union would still dominate the workplace.
Without the right to strike, except in national interests, what good is a union? We would then be back to the courts deciding issues, that should be the responsibilities of the union members themselves.
1
Over and over again this article makes it seem like this author has forgotten or never knew that under the constitution ‘political questions’ are not the purview of the court. They cannot make political or ‘sociological’ (as this person attempts to obfuscate ‘political’ with a different word) decisions... those are meant for the legislature. It’s basic separation of powers you learn in 1L in law school. I have no opinion on the case being discussed or whether it is or is not an issue of ‘political question’ in the formal legal sense, but I do think that a lot of people want things to go to SCOTUS or don’t like one of their decisions for this very reason. But to change it is dangerous too. We already have had presidents for decades eroding separation of powers and taking issues away from the legislature. Do we really want the court to do that too?
1
People are political animals. Your posting is every bit as political as mine. Politics is the only lawful process we have to negotiate the master public social contract defining the frameworks of our lives.
3
This not the 'Roberts' Court...it's a right-wing Randian hijacked court that's been in illegitimate session since Bush-Cheney-Cossacks gutted American democracy in 2000 in Florida, and was subsequently reinforced by Mitch McConnell sedition and Russian-Republican Trump Treason in 2016.
If America had anything remotely representing representative government, the last Republican President would have been George H.W. Bush who departed office in 1993.
America would have true universal healthcare or single-payer health care, real voting rights, real worker rights, an outlawed gerrymander, and heavily restricted billionaire moneyed 'speech'.
But instead, we have a radical Republican dystopia featuring Greed Over People, Grand Old Propaganda and right-wing Supreme Court justices reinforcing Grand Old Poverty.
Last month, the radical right-wing Supreme Court sided with businesses whose employment contracts include mandatory arbitration clauses that prevent class action lawsuits. Now, workers who use the courts against an employer must do so as individuals, forcing average Americans to spend money they don't have to battle huge corporations who break labor laws, thereby making basic labor law justice a David vs. Goliath battle against a stacked corporate deck.
If the Supreme Court follows up this wretched May decision by gutting public sector unions, then the Republican war against American workers will be complete.
Make Workers Slaves Again
Trump:GOP 2018
November 6 2018
98
If the National Debt was called in and every citizen had to pay their part of the debt there would be many, many who could not pay the IOU`s. Indebted Servitude would be established along with bringing back the work house. And if trump has his way orphanages, because people in the poor house can`t have children. Children will become valuable because you won`t have to deduct as much from their personal debt for their labor. And what do I see today? trump wants to combine the departments of Labor and Education.
2
I agree with most of what you said, but we must draw a distinction between the Justices and the Court.
We can replace bad justices. We cannot replace the courts. The same mega-rich forces that makes policy through massive political donations (the true Deep State) and organizations like the Heritage Foundation, would love nothing more than for the American People to believe that the Courts and our Republic in general are illegitimate.
If they can get the People to believe the courts are illegitimate, they can rip up the constitution, then rule through the raw power of huge bank accounts and private armies.
The Trump revolution (including 85% of the Republican Party) unopposed by the establishment centrists in both parties wants to replace our democracy with capitalism without democracy, as practiced in Russia and China.
There is a difference between corrupt actors and a delegitimize system. I have long said that out system has been hijacked, researched corruption and called for reform (and for the Democrats to fight for workers) but I have never called my government the enemy, or called for its overthrow, or called the courts or other institutions illegitimate.
Democrats, don't grasp at straws. Don't help Trump delegitimize the Courts. Don't become Republicans to fight them.
Wield the Truth and the Constitution without fear or compromise and drive the Deep State and their white supremacist minions back into hiding.
Build the base. Unite the Left. Win!
The court lost all legitimacy with the appointment of Neil Gorsuch. I won't respect any majority vote that includes an illegitimate justice. There's really nothing else to say.
21
And how (but I'll say it anyway)! Gorsuch should be nowhere near the Supreme Court - any decision where he is the deciding vote is illegitimate in my view
Why do the arguments of Democrats always play straight into the hands of Republicans?
There is a difference between corrupt justices and an illegitimate court.
If the Supreme Court is illegitimate, then the law ceases to exist, and all that is left is the raw power of billionaire bank accounts and private armies.
That is what they want. How about you?
The Supreme Court should be abolished at this point. It is clear that modalities of Constitutional interpretation are being wildly abused in order to create laws which advance the interests of political parties, and this is fundamentally undermining the rule of law by making the legislated law essentially meaningless.
3
I think it might be time for liberal labor activists to shift our attention, and concede that the fight for unions is all but over.
It's over because the way work is done has shifted so dramatically. In manufacturing, we learned in the 1970's that stronger protections for workers in the face of complex manufacturing processes and technology often means a slightly inferior product, which consumers then punish. And in the public sector, we're seeing the same pattern.
Now, in a more enlightened society with strong state and worker controls, people can often overlook the minor inconveniences associated with the pursuit of social justice and pay equity, like Venezuela and Cuba manage to. But we probably won't be able to do this here; capitalism, greed, and the pursuit of material comfort and choice are too deeply entrenched.
So instead of working against this, perhaps we should work with it, and push that much harder for NON-worker protections. In other words, push for a universal basic income, push for universal healthcare, push for rent controls, and push for free housing and education.
I think this will resonate more because let's face it - many people already assume that many of us in the lower class and on the left are incompetent and lazy, and so paying us off matches their conception of us. This how many tech titans now think, and we should work with this.
So maybe let's focus elsewhere! Why "work" for money, when you don't even have to pretend to anymore?
3
Teachers have never been out of favor. Even we conservatives understand that they have, traditionally, been grossly underpaid. Public service will ALWAYS require sacrifice, but it should not require starvation.
Teachers’ Unions are an entirely separate matter. They care nothing about children, education, or – in spades – taxpayers. And they’re totally unnecessary. Public employee compensation is a POLITICAL issue. Sometimes, that means showing up, en masse, at the State House, to make your case. In some of the cases, this happened without union involvement. And that’s fine; public employees are entitled to make their case to the people and the people’s representatives.
Leave aside the great evil involved in concentrating so much political power in the hands of a few people whose sole goal is to maximize taxes and spending; that wouldn’t be sufficient to warrant judicial involvement. That’s how leftists roll: if it’s “bad”, it must be unconstitutional.
The question here is whether one can constitutionally be compelled to support an organization, the very existence of which is a political statement. Public employee unions are a bad idea. Until recently, even most Democrats thought so: cabals arrayed against the people are problematic.
One can love what teachers do and be appalled by the actions of their unions. And compelling one to join a political organization one considers problematic, if not evil, as a condition of public employment, violates the 1A.
5
Your entire argument is rendered moot by the reality of free riders. Split the income tier for union and non-union members; suddenly, union membership will be much more appealing, even if the politics are unpalatable
"Leave aside the great evil involved in concentrating so much political power in the hands of a few people whose sole goal is to maximize taxes and spending;"
I can see the union boss now; "lets see, how can I spend as much government money as possible."
Seems rather implausible, at best.
"Public service will ALWAYS require sacrifice..." Um, well, yes. But Tom Pruitt and Donald Trump and Jared Kushner and Ivanka Trump and Ben Carson...
Linda Greenhouse is dear sweet person and I always read her column. But like many liberal leaning people, she is a little naïve when she talks about some topics. She is still wondering if the Supremes have an legitimacy left.
It might be a shock if we talk about the realities of the situation. For me the question of legitimacy was settle in Bush v Gore. The republican majority said that their man was ahead so lets stop counting. In the history of Florida there have been several contested elections and Florida has government officials and judges who have dealt with recounts. It would have been possible to have a recount in 2000 to settle the issue if the Supremes had not stopped it.
They love to talk about originalism, textualism, strict construction, etc. But that is all just gobbledygook. Often times they know ahead of time how they will rule regardless of the facts of the case.
Alito loves to talk about free enterprise and freedom. But I think that I am correct that his entire career has been working for the government. First as a government lawyer and then as a judge. If free enterprise is so great, why doesn't he participate in it.
11
"Equal protection of the law" is the furthest thing from their minds. The US is terminally schizoid.
Yes, like maybe...now?
Thanks much, Ms. Greenhouse, for bringing to the general public's attention an otherwise largely unknown and under appreciated, critically important Supreme Court case. We shall soon see whether Chief Justice Roberts will permit "his court" to descend into that ideological pit of divisive "tribalism" that has tragically infected, under this current Administration, so many aspects of America's social, political, economic, and even religious interactions.
Depending upon his personal choice, the Supreme Court's popular legitimacy could be affected for decades. It is already teetering on the edge of that "sociological legitimacy" which you reference as a result of the scandalous Merritt Garland episode. If Roberts chooses to push the institution over that edge and into the abyss by its majority ruling in Janus, he and the Court will simply be viewed as rabid ideologues dressed up in fancy black robes.
4
The conservatives on this court are on a mission to repeal the 20th century (with marriage equality being an important exception). That’s their interest, not legitimacy.
5
They're nihilists, not conservatives.
As she said, the constitutional issues are irrelevant. Good, bad or indifferent, legal arguments and principles are not the point. The point is to attack labor and advance the Republican agenda. If the legal argument is good, fine. If it is bad, no matter, decide it that way anyway. Bush v. Gore paved the way for all that follows, both as a sign of the times, and as the path leading ultimately to Gorsuch's nomination.
8
The strength of the free rider argument, endorsed not only by Paul Samuelsonm but also by James Buchanan, is not that the free rider is getting something free, but that since one can receive the benefit without paying for it, there is an incentive for rational people to "ride free." As a result, paradoxically, people receive less of the public good than they would be willing to pay. This is the public choice argument for compulsory taxation. It was the argument for the closed shop before Taft-Hartley. it is notable that the recent teacher strikes were all in right-to-work states where the teachers actually lacked strong unions.
2
Right to work means nothing more the right to work for less. These laws are pushed by guess who big corporations who do not want to deal with unions or labor. The power against workers is very asymmetrical. Employers to workers take it or leave it we are not going to negotiate with you.
1
If the Supreme Court decides that employees that are represented by a union don't have to pay union dues if they object to the union's activities on their behalf then what about employees of a company that object to the company's political activities? The employee's work is what makes the profits that the CEO then spends on political activities. I can imagine that most employees would rather see that money in their paycheck rather than in some politician's pocket. Especially if that money goes to people like Trump and his supporters. Let's see if this Supreme Court really has the interest of justice at heart.
4
Well, THIS won't happen, BUT if Abood were to be overturned, it would be only fair if those who do not pay for representation were barred from the fruits of the same.
5
The right leaning Supreme Court has become another indication that our democracy is in serious trouble. The GOP needs to die as a party. I hope good men and women who care about this country follow Steve Schmidt's lead.
9
Roberts and his fellow unprincipled conservative mandarins on SCOTUS showed long ago that the legitimacy of the Court would be compromised if not abandoned all together for the sake of exercising raw political power:
See, e.g., Citizens United, Shelby County et al.
5
Under the "sociological legitimacy" principle cited by Ms. Greenhouse, should the Supreme Court have refrained from ruling as it did in cases such as Brown v. Board of Education, Roe v. Wade and Engel v. Vitale on the ground that at the time a substantial segment of the public was deeply opposed to school desegregation, abortion and banning school prayer?
9
In their view, "legitimacy" flows not from actual popularity, but from popularity with a certain elite constituency, which resides in the universities and the upper-class intelligentsia, as exemplified by most of the commenters in this space.
Can't say this is an original thought. Every year Dems come out and try to scare the High Court from doing the right thing. Mind you, these are the same individuals who have championed the Court finding gay marriage a constitutional right and abortion as well. Some of the most divisive decisions in our entire history they applaud as the right action by the Court. A Court that the very first Chief Justice (John Jay) resigned from because the Court's power was so limited. Yet now, the Court should not act to protect the First Amendment.
Reasoning like this, is why I, as an attorney, understand people's confusion about our legal system.
9
I suppose the right thing is stripping workers of their collective voice. We live in an age when employers have nearly all the power and billionaires can contribute unlimited amounts of money to causes and candidates. But hey, anything to further the serfdom of the American workforce, right?
50
@Chad He's a laywer, what does he care about public unions? Those are for little people.
3
First and foremost, Congress is denied power to treat any tenet of religion as a fact meritorious of recognition by law.
Every lawyer who points to the Constitution to say that it doesn't protect some right reserved by the people is a disingenuous fool who doesn't understand that the Constitution is only about the powers of government.
If government workers can refuse to pay union dues, even those used solely for collective bargaining, because the workers don't agree with unrelated union activities, then why must I pay taxes funding government activities with which I disagree?
88
Why should corporate managements decide how to spend shareholder money politically? Shareholders are being cut out altogether by stock buybacks now.
7
I think labor laws should be changed to allow unions to divorce themselves to those employees who are not members. That means all the salaries and benefits negotiated by the union would not be passed on to those who do not pay dues. That would eliminate the free riders and provide incentives to be dues paying members and activists.
10
I agree with your theory but it wouldn't work. If the employers paid union and nonunion employees differently, the nonunion employees would then sue for discrimination and probably win. Therefore, they would still be free riders.
3
It isn't just pay. Our union contract is 51 pages of rights and benefits that protect an employee throughout their term of employment. No prospective employee could possibly negotiate that. So go ahead, pay them the same - pay is just one page of the contract. It's the other 50 pages that will trip them up.
1
That sounds fair and reasonable, which is why this illegitimate court would oppose it.
The likely outcome will be public employees have the choice on whether or not to pay the union, and the union only represents employees who pay.
Unions are private sector organizations given monopoly power by government.
Major issues in a union contract have great impact on the public, public and are rightfully part of politics, including:
- in the event of layoffs, do the best performing employees (in the view of administration) stay or those with the most years of service?
- what are the means that administration can evaluate individual employee performance.
- to what extent are employees paid with annual cash compensation verses benefits that obligate government for decades such as pensions and retirement health benefits.
- how does pension and other retirement benefits work, including are employees who work for many years advantaged over those who only work for 5 years?
- to what extent is terminating an unacceptable employee prevented or made more difficult or costly than what civil service law requires.
- to what extent are some employees paid more than others and for what reasons? Performance, Seniority, what it costs to fill the position with a strong candidate?
- What is the balance between class size and teacher pay
- To what extent do union rules decide which location an employee works vs the administration?
- Does the public pay for union member time to work on negotiation of a contract and its administration or do union members?
6
Amazing! According to Ms. Greenhouse, the Supreme Court can be legitimate only if it issues decisions she agrees with.
There are countless areas of the law in which Supreme Court jurisprudence has evolved. And most of that evolution has come to the delight of progressives like Ms. Greenhouse. We are told that our Constitution, itself, cannot be bound by its literal words, but instead must reflect changing reality in a changing society.
Well then, the public employee union has evolved. Instead of small bargaining units representing some discrete groups of workers, they sweep in entire state workforces. This, in effect, makes union membership mandatory for all or virtually all state employees. The union has also evolved in its approach to politics. Whereas unions once limited their political activities to issues specific to their members interests, unions now are the major funders of Democrat party politics period. They have become political organizations that also happen to spend a small amount of their time negotiating salaries. Finally, even the public unions core function, collective bargaining, has become a political act. The negotiations pit the union's interest against the citizen's interest in good government and spending prioritization.
These facets of public employee unionization raise legitimate issues and THIS Supreme Court gets to decide them. We don't care if you agree. In the words of President Obama, elections matter.
7
Elections matter? Not really. Obama was elected. Doofus got his court pick.
It's called the Democratic Party, not Democrat Party.
I would hope that Chief Justice Roberts understands that the legitimacy of the court is at risk when justices are inviting challenges to rulings they don't like in the first place. If Mr. Alito wishes to change the laws regarding union dues, he can quit the court and run for office in his state. But one person should not have the power to override the will of state legislatures and union members.
47
I hope you feel the same about Justice Bryer's invitation on the death penalty.
1
I was taught that the best and brightest used to be appointed to the supreme court. Of course, the history of the court shows otherwise. You have John Marshall ( Marbury v Madison) who set the role of the court. Then you have Roger Taney ( Dred Scott). During the late 19th century, the court was all about corporations. Now corporations are "people".
I hate to think that the civil rights era was just a blip on the radar, but the court seemed to have giants. Now the court has been weaponized, starting with silent Clarence Thomas. Alito and Gorsuch have such clear agendas it is appalling. ( All this without getting into the legitimacy of Gorsuch sitting in a stolen seat). Whatever happened to the idea of jurist who comes to the case not having pre-judged the case ? No wonder this Court seems to have no legitimacy.
77
Thank you for saying "seems."
The court odds illegitimate. Some of the Justices are not. Big difference.
A court seat was held open, and Mr. Gorsuch was nominated and confirmed, specifically in order to advance Republican power (which of course entails curtailng the power of both government & private workers). I don't buy the idea that the court--or the GOP-- is "skating on thin ice" by blatantly going against public opinion OR against the law. Republican hucksters are bragging daily about how many judges Trump has already appointed, and how many they blocked under Obama. The courts are political and the Republicans control them. Whom is Ms. Greenhouse (or anyone in the "MSM") helping by pretending that the court has legitimacy, if not the Republicans themselves? If they didn't also control most of the media and the other branches of government, they might face significant backlash. All they have to fear is the jokes of late night comedians.
12
The right wing “justices” are pretty much trained, bought and paid for by the billionaires, the Kochs, the Mercer’s, the mellon Scaifes.
What else can we expect from them?
This is the court that brought us Citizens United. The ruling that has been fundamental to the right’s strategy of rigging the system since they know that they can’t really win on the policies and on demographics.
All the Yale and Harvard Law degrees and intellectual firepower mean nothing when you have a bunch of uncompassionate, soulless “justices” who do mainly what their paymasters tell them to.
Hand it to the right, they have succeeded resoundingly in their long term strategy of clinging to power long after their electoral prospects fade.
Please keep speaking truth to these men. Our nation needs it.
23
In a court now dominated by conservative ideologues including the illegitimate Trump appointee Gorsuch these things are to be expected. The Roberts court has its corporate agenda and justice for the “little” people isn’t part of it. Undoing the advances of economic / civil & social rights and returning us to their idealized past of unrestrained capitalism, white conservative christian political domination and rule by the plutocracy for their own benefit is their objective. Alito’s quest to end all forms of collective action by employees from unions to class action lawsuits is part of the agenda to put people in their place and protect the prerogatives of the plutocracy. This court is little more than a rubber stamp for a reactionary conservative agenda barely held in check by 4 moderates and a slightly less than reactionary conservative who swings occasionally but is otherwise reliably on the “right” side. Outcomes are predictable when cases are guided by justices for their own agendas.
12
I have no optimism left. The Koch Brothers will have their way and Unions in America will be completely destroyed, unfortunately. We have watched this systematic dismantling go on for years now, and with the now-fully politicized Conservative Supreme Court being used as a weaponized mechanism there is no real hope.
19
I understand you frustration, but if you don't want to live in a corporate theocracy ruled by Emperor Trump, despair is not an option.
Stand up and fight for your Republic!
" At the same time, the court necessarily skates on thin ice when it comes as close as it has here to serving an agenda that is not the public’s but its own — and by a 5-to-4 vote."
How did we allow partisan hacks on the Supreme Court?
Scalia provided a model for extremists on the Court and would be proud of this lot of conservatives.
The Supreme Court was supposed to be above the fray, truly separate. Sober and deliberate.
Grinding away slowly and exceedingly small.
I know my language is strong here but, under those black robes there is no way to tell whether a justice is wearing red or blue. That's the way it should be.
But if the conservative court is going to so feverishly and consistently rule as the republican party wishes them to do, even though assisted by Neil Gorsuch, who, I believe, is as close to an illegitimate justice as can be, maybe they should just suit up in red or blue.
That would at least serve as a visual reminder to all Americans that the constitution needs to be reviewed and amended.
11
We cannot amend humans. That is the conundrum.
There is no reason for managements to wield any more political power than labor. I think politics is strictly for living beings, not inanimate corporations.
5
This is strange - I started to read the article thinking it would be about whether or not the Supreme Court itself had lost its legitimacy (I think it has). I used to actually read arguments that were brought before the Court and I listened to opinions. Not anymore. I pay absolutely no attention to them. To me, they don't exist.
10
Apparently, for you, most of the American people don't exist.
No directive in the whole body of US law is more direct than "Congress shall make no law respecting an establishment of religion", and this court is utterly derelict in its duty to enforce it on that infantile body of hypocritical fools. This court deserves no respect at all.
One odd wrinkle is that, at least in some states, the state government supports the notion that union dues must be obligatory.
And those who decline to pay dues should be kicked out of the union, right?
Should the Supreme Court rule in favor the plaintiffs, i.e., make union dues discretionary, the states should respond by negotiating with the union and those who opt out, separately.
And if the non-union public employees get a far worse deal than their unionized, dues-paying brethren, how can the non-union employees complain?
Conservatives love to talk about the importance of liberty.
Certainly one should have the liberty of going it alone and making less compensation, if one chooses, no?
47
The nonunion employees would complain of discrimination and probably win.
@MT:
"And if the non-union public employees get a far worse deal than their unionized, dues-paying brethren, how can the non-union employees complain?"
And what if, under your hypothetical scenario, say as a union-busting tactic, the non-union public public employees got a far better deal than their unionized, dues-paying brethren - are you OK with that outcome too?
This sounds good in theory, but in practice it should result backfire and become s shoe horn that kills the unions completely.
For example, what if they decide to give the non-union employees a better deal for a few years? Then the union may collapse completely.
"The point of the Abood decision, of course, is that workers who object to the union’s political activities don’t have to pay for them."
Apparently, Ms. Greenhouse does no know what the word "fungible" means. Let me explain.
Let's say dues are $500, of which $250 is used for political activities. Teacher A instructs the union that he does not want her dues used for political activities. To make up the difference, the union takes the entire $500 contribution from Teacher B and uses it for political activities.
So if you are a politically conservative union member, yes, you are forced to pay dues that are used to support candidates you oppose.
3
Then, sir, in fairness you must reject any raise in pay or improvement in working conditions negotiated by the union whose activities and very existence you decry! It is, to coin a phrase, fruit of the diseased tree.
I am not holding my breath that your so-called principles are that important to you. Your willingness, indeed delight in free riding on the work of others reveals your true character and the hypocrisy of your beliefs.
14
Sorry, but there is nothing more reprehensible than forcibly taking someone's money and sending it to a candidate the person detests.
Here's an idea. Cut dues in half, and use the remainder strictly for negotiating better wages, hours and working conditions.
1
Your artificial example is misleading. This kind of fungibility only exists if the split is right. If 80 percent of fees are paid by those opposed to the union's politics, the union won't have very much money to promote its political views even a state it bargains for those 80% and supports them in a strike. And what's fungible for the goose is fungible for the gander. Since in fact most workers in union shops are union members, a lot of the majority's money would be used to support coworkers opposed to the interests of those supporting them. (Also, I am not sure the money is fungible. Are you?)
I filmed an interview with Tom Clark in the early Seventies and, touching on Brown, he told us the Court had had the votes to overturn Plessy for a long time before they reached down for Brown. They waited until they could deliver a unanimous decision. I wonder if the Court will ever have the luxury of taking a stand like that on a defining issue again.
17
The one constant in the Republican controlled Supreme Court is their favoring of any and every measure that will increase the political power of the Republican Party and diminish the political power of the Democratic Party, and their opposition to anything that does the reverse.
Don't expect anything different from this decision.
100
These people were installed to rule that the US government was established by God.
On Constitutional matters the Supreme Court is essentially tasked with interpreting society's understanding of the rights it guarantees. Not what society thinks it understands, which can be vague, self-contradictory, easily manipulated. But what it does understand, as for example the right to privacy which is notoriously not in the actual text of the Constitution. Arguing about that understanding is right and proper. Using the Constitution to serve political factions and powers, and not the individuals who... constitute society is not.
6
Linda Greenhouse weaves a story about court legitimacy and policy but in the end it is nothing more than a a pro-union paritsan piece that speaks nothing of the court and only her opinions on unions. The underlying presumption is that unions are a societal good and therefore deserve support. If she believed that unions were in fact bad for society, the entire tone and nature of the article would have been completely different.
8
You criticize what you perceive as pro-union bias on Greenhouse's part but ignore Alito's demonstrated anti-union bias? Seems you are biased as well. Alito has been actively trolling for a case that will allow him and his colleagues presumably to install that bias into legal ledger domain. Is that judicial conduct or political conduct? You tell me. Is political conduct a fitting role for a Supreme Court Justice? If one is a Democrat or a liberal, can he or she expect a fair hearing and judgement from a political court? Doubtful. By such activity, Alito diminished the integrity of the Court and proves that this opposing his nomination probably were right to be skeptical of it and him.
13
"Free association" is a reserved power of the people.
This is a nice article describing where and how the SCOTUS currently operates. One could certainly argue that the court, by virtue of the Justices being appointed by the current POTUS represents the will of the people. However, as we have seen Mitch McConnell has no room for that type of logic. Although I favor a Democratic Senate, I worry that if that occurs and we have one or two resignations from the SCOTUS, that Chuck Schumer will walk across the aisle and tell 'ol Mitch that we aren't going to consider a new Justice until the 2020 election. When you think about the monumental strides we made in developing the legal basis for Progressivism during the 30's - 50's that culminated in the Great Society and see what has occurred when Republican Presidents have seated uber conservative Justices, you can see that reflection in the state we find ourselves in today. Hopelessly split as a nation and no visible way out.
11
That would be good for me. No supreme court justices until 2020.
It is time to face the facts. We should refer to the Republican Justices and the non-Republican justices. These are people who have been nourished from youth by the Heritage Foundation to be Republican puppets. The idea of being fair or evaluating cases on the merits rather than trying to find a way to reach their political goal never enters their mind. Precedent, congressional intent, unbiased analysis and state sovergenity are disregarded to reach their desired result. This court is supreme only that it is last.
116
Greenhouse rolls out the usual liberal argument in defending the justness of public sector unions against restrictions - holding the right to high minded principles (Alito has a vendetta against unions!) while then ignoring equal principles when it come to the left (teachers are wonderful and deserve raises!).
What about the fact that, when offered the option to be union members or not, many public sector employees choose not to join, thus severely curtailing the millions they collect for political purposes.
Also, there is the issue with public sector unions having belts and suspenders - union protection and protection of civil service status (originating back in the Cleveland Administration).
Finally, this is further compounded by unions funding the campaigns of the elected officials who are the 'managers' they sit across from at the bargaining table.
Talk about a tilted playing field in favor of public sector unions!
Anyone who has spent any time in the public sector realizes these employees are a mix of great, good and awful. For the awful, just see any of the news stories about NYC DOE's 'rubber rooms' for awful and even some criminal teachers that they can't fire. This is a burden on other employees and the taxpayers.
The solution: Public sector employees should be offered a choice:
1) union members with collective bargaining rights and no civil service status, or
2) choose to be non-union but civil service and depend on management for their advancement.
15
The true solution is to eliminate civil service and relegate only the most vital of government services to a small group of conscripted workers who could be chosen from a pool of 18 year old males created by resuming the draft. After all military services were fully staffed at the reduced cost of a conscripts allowance to cover only essentials (housing, meals, etc. being provided in bulk by the armed forces) we could fill out our federal, state and local agencies with the remainder of public school educated young men.
2
Very interesting take on the situation, definitely food for thought. From my perspective, I have a lot of trouble with public service unions getting involved in politics, period. If they should exist at all, they should function strictly as advocates for the membership (and possibly the partial contributor non-members). If these workers wish to band together to exercise political muscle, they're free to do so the same way anyone else would. This would be ideal in a perfect world, but now that corruption has been memorialized as the American way, and truth and justice have been replaced by avarice and vengeance, the chances of this being decided for the greater good are vanishly small.
8
1) Employees already have a choice, in that they can decline to pay for political activity. The First Amendment is only involved in that plaintiffs are opposed to unions in principle and don’t like the laws where their fellow workers organized.
2) Civil service laws have zero to do with bargaining over working conditions. They are about firing, discipline and promotion. They exist to keep patronage out of the system.
59
The Republicans on the court are nothing more than paid hacks, and they can make up the reasons to fit whatever foregone conclusion they have reached in order to further the interests of the Dukes and Earls (read Kochs and Mercers) who control government.
So, no Ms. Greenhouse, there is no question of legitimacy in my mind.
127
There is a difference between bad justices and the legitimacy of the courts.
If you let them use bad justices to delegitimize the courts, then they will succeed in gutting the rule of law.
Without the rule of law, the only thing left is the raw power of political violence.
Don't help Trump delegitimize our Republic.
Build and unite the left base, win elections, and force them to compromise with the actual text of the Constitution.
It would be shocking if the court upheld the union dues. In addition to legal and sociological legitimacy, there is political legitimacy, and this court was denied that when it was handed Neil Gorsuch, who now sits in Merrick Garland's stolen seat. It will never be forgotten.
289
Absolutely. The Supreme Court has no legitimacy for as long as Gorsuch is on it.
1
Gorsuch must be impeached at the first available opportunity. His seat is illegitimate, and it delegitimizes the federal judiciary.
1
To bad the Democrats just say back and let that happen, while they continued to beg for compromise.
Three Democrats even voted to confirm Gorsuch!
The legitimacy of the Supreme Court, legal or sociological, set sail in Bush v Gore, picking up wind most notably in Citizens United and disappearibg over the horizon in the engineered ascension of Gorsuch over Garland. While I share a desire that the Court - or at least its vacillating swing vote - might be swayed by recognition of recent public support of teachers, I have no real expectation that the politicized 5-4 split will change in the Janus case. Although recent decisions have managed to duck major precedent changes, I don't see how that can be done in this case. (Of course I'm not a Supreme Court judge.) My faith lies mainly in a hope for change at the polls signaling some return to bipartisan court appointments.
As an aside, Janus was the Roman god with two faces, symbolizing beginnings and ends. So maybe there's some hope there after all.
177
The confirmation process went off the rails when Robert Bork was attacked by Joe Biden and others. He was attacked not for his qualifications but for his perceived opinions. The Democrats started the mess that we have now perhaps they can work to correct it.
1
Was the court legitimacy still in place for Obergefell in 2015, or is that only for decisions you dislike politically?
Bipartisan court appointments?
You mean like Garland?
Lol
Stop bringing cupcakes to a nuclear war.
Go read right wing websites and see what these people talk about.
They don't want compromise. They want to crush you. They don't care about you anymore than they care about nine month old Hondurans.
I may be paranoid, but the right have essentially declared war on America and you still want to find bipartisan court nominees????!!!!!
As Roberts said that "Political science is “sociological gobbledygook", we can only assume that the conservative majority (which exist only by virtue of violation of constitutional requirements) will adhere to their factually unsupported certainties: I fear public unions will gutted.
81
Wouldn't this case ultimately speak to the necessity and legality of paying taxes as well? There are many uses of my tax money that I deplore and yet I must pay because they try to create the most good for the most people. I share in the roads, police, protections etc. as much as I share in the waste, wars and pogroms created by the Federal, state and local government who must represent me. It seems government protections at any level are being narrowed and eliminated for the majority by the minority. It seems that the push now is to disband the "common good" ideal by forcing the idea that there is no "common" amongst us, reducing the country to warring factions which are much easier for smaller groups to control. United groups and people and harder to push around.
321
Risa is exactly right. The issue of unions' right to collect agency fees is analogous to the government's right to collect taxes. I may not have voted for those in elective office or agree with their actions, but I have an obligation to pay taxes to fund those actions anyway. The common good depends on it. And it is in agreement with the democratic principle of majority rule.
48
Yes, they are trying to undermine the entire concept of the common good or that we have any responsibility to each other at all.
This is because the mega-rich that make most of the political donations control more than half of the world's wealth and don't want to share. In fact they want you to pay the taxes to pay for the police and military to protect their wealth, while they convert the majority of your productivity into their income. That is what their "tax reform," really accomplished. Find the details and do the math.
(They have no problem with redistributing your productivity into their bank accounts, but if you try to tax it back its "redistribution of income.)
The preamble to the Constitution of the United States of America, says that we should "promote the general welfare." The Constitution. says that we should collect taxes to pay for that.
Republicans oppose the Constitution and say that we should promote the welfare of the owners of capital with a vague "promise" that some of their wealth will "trickle down," on everyone else.
Wealth didn't trickle down before we wrote the Constitution and its trickling up far faster than it's tricking down.
If the Democrats fought tooth and nail for what the Constitution actually says, instead of compromising with those that are trying to rip it up, they would win far more elections.
Give workers a reason to vote, instead of blaming them after the election is over.
1
"Wouldn't this case ultimately speak to the necessity and legality of paying taxes as well? " Your statement reflects a common misconception. Unions are NOT the government ! Government is the only organization that can compel your support (through taxes) - even if they use that money for purposes with which you disagree - e.g. war. To protect ourselves against an unaccountable government in a Republic, we elect representatives chosen by the majority. In this sense, we subordinate our preference to that of the majority.
But even in this case, we believe that there are certain "unalienable rights" which we have enumerated in the Bill of Rights. These are inherently individual rights (as the Court has repeatedly held). A majority (which speaks through the government) could no more compel you to support a given political cause than they could compel you to practice a particular religion !
To put it another way, it would be Constitutional if the government taxed you ... and used part of that revenue to pay the unions to represent workers (just as it uses tax revenue for many other purposes in the "General Welfare" - Article 1, Sec 8). But this is a very different thing than a majority of workers coercing the minority into supporting a union that the majority has chosen.
When you have a Supreme Court in which the justices are nominated by presidents who lost the popular vote and confirmed by a Senate wherein huge swaths of urban voters are grossly under represented—particularly when the urban vote has been deliberately suppressed—you have a Supreme Court that lacks democratic legitimacy as well as sociological legitimacy.
414
Former Solicitor-General Walter Dellinger recently said that if demographic trends continue, within 30 years 30 percent of the population will elect 70 of the Senate.
That will be how our democracy will go down the drain.
1
And don't forget that a Supreme Court lacks legitimacy when one of nine members has absolutely no right to be there.
3
@WmC: "... you have a Supreme Court that lacks democratic legitimacy as well as sociological legitimacy."
Especially when filling that vacancy was denied to the previous President on the whim of the Senate Majority Leader of the the opposing party.
6
Another thoughtful and perceptive commentary, Ms. Greenhouse. Again, you show us the consequences of what may appear to be small acts.
Isn't Fallon's argument really broader than "sociologiccal"? Acceptance of the legitimacy of policy stems from not just the public's mind, but from their heart and soul. The power of the Declaration and Constitution are based on deep feelings that their principles are fundamentally right, not merely logical and consistent.
36
I would be shocked if the Court upheld union dues by all workers. Alito will lead the charge to attack workers. I do have hope that the new support for education will change the other conservative minds, though.
14
The distinction between "legal" and "sociologocal" legitimacy informs much of the political landscape today. This is neither a moral distinction nor a turn to majority opinion as truth.
The distinction is at core a reference to the cultural values which bind us together as a society. Read Mary Douglas' or Durkheims discussions on the ways in which social solidarity, when intact and supported by a strong moral sensibility, creates the greater possibility of a "good" social system. Thank you Linda for your insightful article.
59
If it contains "social", it is has to be evil, according to God's little pet goldfish.
1
I find it at once amusing and disheartening that the same folks who decry activist judges on the one hand, applaud interventionists like Alito on the other. The real issue isn't activism, but the act itself--if you like it, it's just, if you don't like it, it's activism. Unfortunately for the country, there is no legal or sociological legitimacy. When it comes to a 5-4 vote, it's about power. Might makes right. This is the true Roberts legacy.
235
If we survive Trump, then he has done us a huge favor.
He has made it glaringly obvious that (except for tax cuts for the rich) every single thing that Republicans claim to believe in is a BIG FAT LIE.
They are against everything Jesus ever said (except that no matter what they do they will be forgiven) and don't believe in families,the rule of law (unless out can be used to abuse minorities or foreclose on homes), don't care about veterans (John McCain is a loser), are patriotic until Trump likes Russia better, etc. They even added trillions to the national debt last year without even any votes from Democrats.
Now that Trump is president, they no longer bother with plausible deniability. They no longer hide behind innuendo and dog whistles. They are now saying out loud that they will say or do anything to get what they want, and are openly doing the opposite of everything they claimed to be near and dear to them.
This means that the Democrats no longer have to play their game. The Democrats can now just laugh at their claims to care about families, truth, justice, process, national security, our any of the other flags Republicans used to wave while they were looting our government.
Yesterday Trump even admitted that the true elite are the ones with money and power, not college professors.
The Republican Party now openly admits that it cares about nothing but raw power to do anything they want to anytime they want at any time.
Thank you President Trump
LEFT2WIN
@PK
Oh, please. Yours is just as much parsing since I'm sure if a 5-4 decision was in favor of some liberal reading, you would be all for it.
Roe v Wade was a 7-2 decision that goes down as failed activism since it resulted in an unjust usurpation of local/states rights so that the Supreme Court could make a sweeping social dictate from on high for all of the US. A more tempered Court, such as with gay marriage, would have judiciously held on hearing such a case until the public sentiment was ready for gradual change as opposed to national upheaval.
Anyone who has been paying attention since at least Bush v. Gore understands that the conservative justices have completely politicized the Supreme Court. It may try to present an image of judicial impartiality, but its actions and the statements of justices like Alito are rather blatantly revealing as to the agenda being sought by these outright partisans. It's sad, but this is what we've come to...
306
They should be assigned red or blue robes; including Roberts. I think I will photo-shop such a picture and send it out to the web.
Abood will be overruled, legitimacy be damned. Sadly, the Supreme Court appears to be all in on shaping the law to protect the Republican Party's hold on political power even though it commands support only of a popular electoral minority. The Court's legally questionable decisions over the last decade point in only one direction.
Citizens United allowed unlimited corporate money, which overwhelming goes to the GOP, into politics. Shelby County allowed the legislative suppression of poor and minority voters, who tend to vote Democratic. Janus will weaken public sector unions, which give ordinary working people a voice and which, as noted, skew Democratic.
Janus has little to do with First Amendment jurisprudence. After all, Abood is a fairly recent, unanimous precedent decided by a conservative Court. Janus has everything to do with raw power. And, when it comes to power, we have five justices whose primary fealty is to the Republican Party, not the law.
37
"Do those words speak to the Roberts court?"
No they don't. Our courts have been inundated with strict textualists. That prevents the judiciary from functioning as judges. How is that possible?
No law can possibly be written to cover all possible conditions. No law can possibly be written to cover the changes in culture and technology that push society forward. The role of the judiciary is to interpret the underlying intent of the original law and apply it to current conditions and society. The textualists would counter and say just update the law. When it comes to the Constitution, that's next to impossible to do. This division dates back to the ancient Rabbi's who waged this battle over 2000 years ago. The same arguments were and are still being made. God said this so do that. Or, God meant this, so do this other thing.
The strict textualist forces society into a fundamentalist mode where progress and change cannot take place. The Islamic world bears that out.
The Constitution was written for wealthy male land and slave owners. Women could not vote or own property. People were property. Senators were appointed. Unions did not exist. Big money ran the show.
This is the world the conservative justices want to restore. The little guy doesn't matter. Big money and wealthy white men matter. The Republicans pay off the little guy with guns and being anti-abortion. The union protections will go down and take your gun to kindergarten.
172
Republican judges love to talk about originalism, textualism, etc. But I think that if you study the issue you will find that they love to use textualism when it produces the results they are looking for -- that is support their big money supporters. If textualism does not produce the desired result, then they will think of some other tac to take.
The people who support originalism, textualism, etc are like the Christian fundamentalist who support the literal interpretation of the Bible. They support it sometimes -- when it produces the results they want. And they go through the Bible picking and choosing which verses to follow.
7
Bruce, you might appreciate this:
http://time.com/5280446/baby-boomer-generation-america-steve-brill/
What's that about the enemy being...us?
I'm a boomer. I did not grow up to be one of the self-absorbed jerks of Steve Brill's article. But, there were enough of them out there to bring us to where we are now.
1
Bruce, beautifully argued, and thanks for the historical perspective.
So, do we have an open, free society bound together by a concept of something called the 'common good'? The key is who defines and enforces the common good. The Robert's court appears to favor an 'every man for himself' approach to the common good: As in the Thatcherism "there is no such thing as society, just a bunch of individuals".
So, Alito, who also pronounced "corporations are also people" now rails against unions who provide some balance between the economic power of the corporations and the welfare of the common man/woman.
If the Janus decision follows the conservative path and deliberately destroys the public unions, democracy itself with suffer. And that is on top of the Trump led assault on our constitution.
The pendulum tends to swing the other way though when one side gains too much power as absolute power corrupts absolutely. SCOTUS is bending to the worst side of American jurisprudence, and Robert's court will not look good in the history books.
31
Democracy is two hundred years old. Before that was ten thousand years of empire and monarchy. If Trump and his followers are allowed to win their political civil war, the pendulum could easily be on their side for hundreds of years.
The stakes are that high. The sands of history are shifting under our feet.
They are trying to undo the Constitution. They want to undo the separation of church and state, to base the law on their interpretation of the Old Testament. (They disagree with all of the advice Jesus gave). They want to undo the separation of powers. They want to purge the Justice Department and FBI, and fill them with "evangelical" thugs. They constantly work to make corporations people, and take rights away from actual humans. They call the Bill of Rights "technicalities" and work tirelessly to make exceptions to these basic protections for citizens. (Although now that Trump and his appointees are under investigation, suddenly all of the exceptions they have created, like no-knock warrants, surveillance, and searching lawyer offices are "Gestapo tactics," according to Trump's "lawyer" Giuliani.)
Republicans are trying to turn the USA into a 12th century theocracy ruled by corporate overlords, and centrist Democrats want to compromise with that.
Republicans have not compromised in decades and are getting ever more extreme.
If the Democrats don't want Trump to be Emperor you really need to ally with workers and the left to fight for democracy and human rights.
32
I heard Kelly Ann Conway say that one in eight Federal Judges have been appointed on Trump's watch. Your pendulum swing could be generations away.
2
What we have here in the USA is a narrow collection of too-rich misanthropes who spend lavishly to disrupt other people's free association.
1
Just wondering . . . is it my First Amendment right not to pay taxes since I do not in any way, shape or form support the current government? You may argue that taxes are the necessary vehicle to keep government functioning. But if Janus wins, I could argue, could I not, that I don’t have to pay out anything in taxes to support an immoral, driftless and corrupt government? It is, after all, my right under the First Amendment. Besides, if I follow the legal reasoning of Alito, Thomas and Gorsuch and Roberts in other cases they’ve been in the majority, do we hearty, robust, exceptional Americans even need government?
109
Your argument would hold water if a union was a branch of the government. It is a voluntary association undertaken for economic purposes by workers. Unions are a branch of the government in China, as they were in the USSR. When you surrender their independence, they become yet another tool for the control of the masses. Unions must be independent of the government if they are to protect the workers, and participation in them must be voluntary if they are not to be tools of oppression. If a state government wishes to encourage membership of voluntary unions, it should change its laws so that it is not required to pay non-union members the same rate or benefits as those who participate in the union contract. The union can justify itself and attract members through its actions, as is fair and right.
1
You ask a Libertarian question of individual responsibility and need. What the court will decide is the Republican question of how far can they go to suppress and isolate the common good and hence the common citizen.
2
Alright Donald, doesn't the president have anything better to do than comment on NY Times op-eds?
I know you want to delegitimize the courts and not pay taxes, but you should know that that rugged individual nonsense is just made up. You wouldn't last five minutes by yourself on a deserted island.
Seriously, PaulB67, do you really think that threatening to not pay taxes is going to convince a party that voted for the guy who says he didn't pay taxes because he's smart?
The whole mission of the Party of Trump is to delegitimize the courts, the rule of law, and our Republic, in general.
Don't help them.
I have never understood the first amendment arguments used to challenge agency fees. In a free market, no one forces a worker to take a job in a union shop. If someone disagrees with unions on a philosophical basis, why are they signing up to work as a teacher or DMV worker in a state where those positions are unionized? Not to mention that agency fee payers cannot be forced to pay for any overtly political activities like lobbying or political donations. As Ms. Greenhouse points out, the political (vs. constitutional) motivations of this case seem very clear
73
Your argument does not hold water. Under your rules - the baker can deny service to whomever because nobody is forcing the Gay customers to choose his bakery. In addition, there should be no labor laws period - nobody is forced to work at any particular location - so if they make you work 12 hours per day, dock you for bathroom breaks, no paid sick time, just get a different job.
In the real world - people have to work, sometimes anywhere, sometimes in unionized fields. It’s fundamentally unfair to tell someone they cannot be a police officer or teacher because they are against paying union dues to support political agendas.
Of course I support unions entirely for the worker, without them we’d all still be earning minimum wage. However, political influence for public unions is straight corruption - pay to play politics.
1
Why of course! By the same reasoning, no one is forcing a woman to take a job that pays her less than her male co-workers. She should just be happy to have the job and if she doesn't like it, she should quit, right? She shouldn't have the right to complain because, after all, she chose to apply for that position knowing full well what she was getting in to.
Yes, that's silly, and so is the idea that an eager college grad with a passion for teaching should move to another state just so they don't have to financially support an organization that they feel does not reflect their views.
1
Overtly political activities are exactly what unions are formed to do. It's called collective effort to forward benefits for all working people. Any worker who doesn't understand this, who thinks that union political activities are somehow seperate and unrelated to contract negotiations and grievance settlement doesn't understand the basic principle of unionization.
Any such person who thinks he/she can go up against a corporation or government administration or legislature by themselves and come out ahead, is a fool.
1
There are two major flaws with anti-public sector union thinking. One is that members are "forced to support a union". Unions are formed by a group of employees who VOTE to form a union. It's the will of the group that forms the union and likewise, the employees can vote to dissolve the union by their will. Last I knew, this is called democracy.
The other falsehood is unions protect bad employees. This is also wrong; management failing to do its job protects bad employees. I work as a public sector labor rep. As such, management will procrastinate dealing with employee performance issues for years and then blame the union for rightfully challenging management's failure to train, develop and discipline an employee, sometimes for decades. I see this every day. Management gets paid to manage. They need do it.
81
"Unions are formed by a group of employees who VOTE to form a union".
One man, one vote, one time. The problem is that unions never have to be re-approved by the members. How about some competition among unions for representation of the labor force, an election say every three years between 3 or 4 unions?
2
The compromise in Abood between the public good and an individual's First Amendment rights was a reasonable one. I write because your understanding of how public unions operate is not how I understand it. First, public unions (as with any union) are determined by a majority of those who vote. Second, in many places, the union becomes the exclusive representative of all employees. This means that workers who do not support a union cannot bargain for themselves or represent themselves except in very limited ways. Where a public union is involved, the danger of coercing speech by unwilling employees is very real and protected by the First Amendment. Again, I am not arguing against public unions or for Abood to be overturned, but, from a constitutional law perspective, there are competing interests that must be balanced.
You are absolutely correct, Kathy! i, too, work in a public labor union job and people forget that management does all of the hiring and then fails to manage employees. There is ALWAYS a way to terminate bad employt, and the process is clearly spelled out in the contract that both management and the union have bargained and agreed to. Management is consistently lazy and does not follow discipline and termination precedures, and then blames the union for saving bad employees.
Unions have protecting and employees --- it is bad for the morale and daily work life of other employees --- but management never learns and doesn't care. It is so obvious, that our managers never give an employee an annual evaluation unless it is a bad deal and they want to immediately fire someone. And that is not the beginning of the discipline process in our contract.
I was a member of SPEEA, the professional engineers union at Boeing. It was voluntary and had been founded by the legendary T Wilson, who was CEO and Chairman when I joined Boeing in 1981. The union had been founded much earlier. When layoffs occurred from time to time, you can bet your boots, the non union members who paid no dues would flock to SPEEA. After Wilson had retired, SPEEA conducted its first ever strike in January 2000. I walked the picket line for 40 days and nights, and we brought Boeing to its knees, since no planes were delivered during the strike. SPEEA became an agency shop, where union membership was voluntary, but union dues were mandatory.
American democracy requires strong labor unions. BTW, the picket line was loaded with PhDs in engineering.
30
Given the breathtaking illegitimacy of the GOP refusal to hear Merrick Garland’s nomination and their bending of the rules to assure the confirmation of Neil Gorsuch, there is nothing supreme about this court. It should be referred to as the highest-level federal court and nothing else. No reason to honor the current occupants as “justices” (sorry, ladies), since justice is not a principal consideration in their decisions, either for accepting cases or for ruling on them. The term “judges” will do, as it does for other courts.
18
The incoming Democratic president, l hope, should declare Gorsuch’s seat on the bench null and void by executive order. If it gets to the Supreme Court, Gorsuch must recuse himself. We have had too many rotten justices, but Scalia was the worst.
1
Justice dies of old age long before US courts arrive at decisions.
1954Strat,
Please answer this question would Judge Garland have been approved by the Senate ?
Yes or No.
This answer is No.
So what difference does it make whether he
got a hearing or not ?
It is just all politics.
1
It started under Jimmy Carter, gained steam under Bill Clinton, and continued under Barack Obama. I am talking about the abandonment of labor unions, public and private, by the national Democratic Party. It was a disgraceful abandonment of the Party's FDR- era roots, and it was also extremely stupid. In courting the votes of Silicon Valley, Hollywood, Wall Street, Academia, and the like (What Thomas Frank calls the 10%), Democrats effectively lost the votes of many of the 99%, some of whom responded by voting for Trump.
I'm a public school teacher and a union member, and if the Democrats want me back, they will explicitly state their unqualified support of labor unions.
17
As an old sixties Lefty I grudgingly agree that the party pretty much walked away from unions. However, everything I’ve read and heard coming from our current crop of candidates indicates that this lesson has been learned and that support for unions is now full-throated and sincere. Time will tell of course, but voting Republican will only accelerate the demise of unions, especially if this SCOTUS decision goes the wrong way. Come back to the fold, please; not only unions but the country as a whole needs your vote against the unbridled and amoral capitalism the right is trying to promulgate.
8
I am a Democrat. I have marched for unions (raising minimum wage) more than once.
Being Republican Lite has obviously been a losing strategy for Democrats.