From the Left



The Kochs are trying to kill unions. Be careful what you wish for.

Dana Milbank on

WASHINGTON -- Charles and David Koch, be careful what you wish for.

For years, the right-wing billionaires have been bankrolling the effort to kill public-sector unions, and on Monday, when the fruits of their labors -- Janus v. AFSCME -- came before the Supreme Court, the brothers were front and center: The anti-union demonstrators outside the Supreme Court held signs prominently displaying the emblem of the Koch-funded group Americans for Prosperity.

The Kochs are getting their money's worth. The Trump administration joined the cause, and the five conservatives on the Supreme Court are widely expected to jettison a half-century of precedent. But before those justices pick up pens to sign organized labor's death warrant, perhaps they'll pause to consider, as AFSCME attorney David Frederick warned at the end of arguments Monday, that they will "raise an untold specter of labor unrest throughout the country."

In the decades since the court's 1977 Abood decision, there has been a relative truce in public-sector labor relations: Unions receive "agency fees" from nonmembers for collective bargaining and other nonpolitical activities, and such unions have generally not gone on strike.

Now the Kochs propose to abolish agency fees, saying they violate workers' free-speech rights. But to come to that conclusion requires the justices to declare that basically everything public-sector unions do is covered by the First Amendment -- a massive and destabilizing change.

The conservative justices, who speak piously about judicial restraint, could blow up decades of labor-law precedent, while radically reinterpreting the First Amendment. They would do this even though it contradicts what the court unanimously affirmed only a decade ago and even though in this case they have no factual "record" of what the consequences would be -- only a desired outcome.

I noticed Monday morning that, since my last visit to the court, rodent glue traps had been placed outside doors to the Supreme Court chamber. I'm not the only one who smells a rat.

Justice Stephen Breyer inquired whether lawyers for Janus would, after jettisoning the Abood precedent, "apply modern frameworks to all old cases, beginning with Marbury v. Madison" from 1803.

Justice Elena Kagan noted that the court would be overturning statutes of 23 states and invalidating labor contracts of thousands of municipalities covering perhaps 10 million workers. "When have we ever done something like that?"

This is radicalism, not conservatism. But it doesn't matter, because there are probably five votes against unions, derided by Justice Anthony Kennedy as advocates "for massive government, for increasing bonded indebtedness, for increasing taxes." And any justification will do. Justice Samuel Alito compared workers forced to pay agency fees to Thomas More, killed for refusing to recognize King Henry VIII as head of the church.


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