The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.

Advertisements

Unions, Anarchy and the Court

February 27, 2018

The Supreme Court, the one in Washington, heard argument Monday in Janus v. American Federation of State, County and Municipal Employees. The case challenged whether unions, elected by a majority of the workers as their bargaining agent, can charge what are called agency fees, that is, fees for the work they do negotiating for better wages and working conditions. The argument against the unions is that the unions might advocate things that some workers disagree with and, therefore, worker dues are being used in a way that violates their freedom of speech.

The question is how far the Court majority is likely to take us toward anarchy. But first, three short paragraphs of explanation of the terms involved. Unions are selected in a carefully supervised process to be the exclusive bargaining agent for the workers in the shop. The union officers are elected in turn by the membership. The officers are always on those electoral hooks. The union can be decertified if people conclude that the workers no longer support that choice. And the officers can be defeated at the next election.

Unions are exclusive bargaining agents because a plurality of competing unions can’t represent the workers as effectively. Employers could just deal with compliant unions and leave the others out on strike. The responsibility to share the cost of the bargaining unit is necessary because without it, workers can be “free riders,” getting the benefits of their unions’ efforts while refusing to pay for it. That would undermine the unions’ ability to do their work.

From the perspective of the challengers to the part of union dues that supports collective bargaining and handling of grievances, those expenses are as political as lobbying and candidate support. For them, elections don’t matter, just whether union leaders say and act in ways that individual workers dislike. Their argument is that they shouldn’t have to pay.

So now I want to talk about the next case. Obviously many people object to the use of their tax dollars by President Trump to say things that they believe are horrendous, not to mention all the things he does that many taxpayers object to. Can they demand freedom from paying for his press officers and for any portion of his salary which is used for the purpose of making speeches, twits or statements. The logic is similar. The question is how far this union case can take us toward anarchy?

The same argument can be extended to the statements of whichever party opposes their own beliefs. Can taxpayers sue to defund all the press offices, and all the speechwriters, and the congressional TV studio?

There are problems with taxpayer suits. The Supreme Court might bar the door, but the principle is the same. And there are organizations and other parties who could probably make arguments that they are more injured than an ordinary taxpayer.

The same issues come up on the state and local levels too.

We might also raise the same questions about the Court itself. It is taking American law in directions many Americans strongly disagree with. There are costs involved in preparing opinions and publishing them. Do they also violate taxpayers’ First Amendment rights?

The Founders believed that elections solved the speech problem. But the Court views it differently. For the Court, corporations have First Amendment rights to speak for a majority of their boards, with the funds of their consumers. The dissenting board members, shareholders and purchasers, however, have no right to object to the use to which their funds are put.  Unions, by contrast, can’t speak for a majority of their members, despite the fact that they have available to them an electoral process that consumers don’t.

The logic of where the Court appears to be going is not law and order. Instead it is about anarchy. There is no law or government if each of us is a law unto ourselves, including those uses of speech that are necessary to the various jobs that officials and representatives have. There are anarchists in this country, and the gun owning, self-proclaimed “sovereign citizens,” are among them. The Republican Party, however, is anything but. Their party stands for social control. The issue for them is not authority itself but who controls what. Anarchy is anathema to majorities of both major parties and inconsistent with democratic government. But the Court may not understand the connection and the implications of what they are doing.


%d bloggers like this: