Dark Money Union Busters

The fight to overturn a decades-old Supreme Court precedent has been fueled by secret donors.

By SHELDON WHITEHOUSE

FEB 25, 20182:26 PM

Over the last decade, the five-justice Republican-appointed majority on the Supreme Court has forged a glaring pattern of 5-4 decisions that benefit Republicans at the polls and big corporations pretty much everywhere. In election-related rulings involving issues like gerrymandering and suppression of Democratic-leaning voters; in rulings where it’s corporations versus humans; and, of course, in letting corporate interests to flood our elections with money, it’s been a 5-4 rout in an unmistakable pattern. The upcoming Supreme Court arguments this week in Janus v. American Federation of State, County, and Municipal Employees will tell a lot about this pattern.

At stake is a unanimous decision from 1977 called Abood v. Detroit Board of Education, which let unions collect funds called ”agency shop fees” to cover their cost of doing collective bargaining work that benefits members and nonmembers alike.

The Supreme Court has reaffirmed Abood numerous times, more than 20 States have enacted statutes consistent with that case since it was decided, and public entities of all stripes have entered into multiyear contracts with unions following Abood’s guidance. Precedent, unanimity, reaffirmance, and reliance; all of this suggests that the Court would ordinarily uphold this 40-year-old decision.

But Abood has been a thorn in the side of the union-busting right wing, who’ve been plotting its demise for years. Recently, in a case involving public employee unions, Justice Samuel Alito digressed from the issue at hand to raise questions about the constitutionality of these agency shop fees, apparently inviting a challenge to Abood. Justice Sonia Sotomayor saw what was going on. “To cast serious doubt on longstanding precedent,” she wrote in a concurrence, “is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Michael A. Carvin, a perennial conservative advocate, picked up on the majority’s cue and in the name of a front group called the “Center for Individual Rights” promptly filed the challenge Justice Alito had invited. Carvin actually asked the lower courts to rule against his clients so they could hustle their case up to the Supreme Court (in real litigation, parties don’t often want to lose). That case was called Friedrichs v. California Teachers Association, and it was expected to be the death knell of Abood; but Justice Antonin Scalia unexpectedly died, the Court deadlocked 4-4, and Abood lived on.

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https://slate.com/news-and-politics/2018/02/the-fight-to-upend-decades-of-supreme-court-precedent-on-union-law-was-fueled-by-dark-money.html?utm_content=inf_931_2641_2&utm_medium=paid&utm_campaign=socialedge&utm_source=Facebook&tse_id=INF_74f3f2701a8f11e8831e8dbc9df7201c