Will right to work laws survive in a post-Scalia Court?

“Organized labor is laying the groundwork for an aggressive legal challenge to right-to-work laws, one that essentially would invalidate most state versions of the law.” When unions sought to overturn Indiana’s newly enacted right to work law, the Seventh Circuit upheld it but split 5-5 over rehearing of the case, a surprisingly close outcome. [Sean Higgins, Washington Examiner]


  • Conservatives had no problem with the idea that a 70 year old law (Taft-Hartley) should be overturned by the court to end closed shops. Now that Scalia’s seat might go to a liberal, the left wants to use the courts to strike down open shops. A site that calls itself Overlawyered might want to take the position that the judiciary should stay out of legislative matters regardless of your political preferences.

    • PaulB, your comment is, sadly, typical of liberal apologists for courts ignoring Constitutional guarantees. Without question, there are associational rights/interests which are clearly implicated by forced-union dues paying. These interests, of course, are strongest where PEUs are involved, but private union forced contributions have this issue as well. The same interests are simply not involved with open shops being struck down. That a union has to represent all workers doesn’t really cut it since the union doesn’t have to represent any at all, and on top of that, certainly the T-H Act can protect workers’ associational interests as a condition to the union getting exclusive bargaining rights.

      What is amazing to me is that liberals actually think a regime where workers have to give up their associational rights to work for the government with the promise (that may or may not be kept) that a PEU will play by the rules. Do PEUs always play it straight when it comes to allocation of non-representational expenses? Do PEUs always represent dues-paying non-members in the same manner as full members? If the constitutional quid pro quo is that the PEUs have to hold up their end, where’s the remedy if they don’t? And can such an uncertain remedy really be constitutional when First Amendment rights are being traded?

      Lastly, a person who enters government employ is given two choices–pay the union the full boat, or don’t pay the union the full boat, and the union may or may not do what it’s supposed to if the person ever needs it. Given some of the tactics of the PEUs etc., is it really constitutional to put people to that test? How, in a society that has a constitutional guarantee of freedom of association, can that be ok?

      The answer is that it’s not. And saying that “conservatives” are results-oriented too cannot obscure that fact.

  • Conservatives are result-oriented pragmatist when it comes to constitutional law. So are liberals.

  • Not just constitutional law, Allan. Have you read Sotomayor’s dissent in today’s Puerto Rico BK case? It begins with a parade of horribles, and seems (to me at least) to be almost wholly results oriented in seeking to avoid the language of the underlying text. Yes, there is some legal argument in there, but based on word count and page space, her primary argument appears to be “think of the children”. Maybe you draw a different conclusion. Link here: PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST

    • I amend my statement: Conservatives are result-oriented pragmatist when it comes to all areas of the law. So are liberals.