Labor law roundup


  • Attempts by unions and progressive law school professors to strike down right to work laws on Fifth Amendment grounds should be viewed in context with efforts by their opposite numbers (including Cato?) to strike down the requirement that all covered employees pay dues to unions that represent an entire group in collective bargaining activities. In both cases, we have ideologically motivated lawyers attempting to have the judiciary insert itself into what has been viewed as strictly a political matter to be resolved through the legislative process.

    A site that calls itself Overlawyered should use this occasion to argue that judges and lawyers in general should resist the temptations to elevate what they think should be right into a constitutional requirement no subject to the democratic process.

    • The judiciary should not be deterred from upholding individual rights found in the Constitution simply because some issue “has been viewed” (by whom?) as for the legislative process to handle.

      The better question is whether the claimed rights are in fact to be found under a fair reading of the Constitution.

      I agree that lawyers sometimes do over-litigate constitutional questions, whether by disputing over trifles, by advancing long-shot theories unlikely of success, by using litigation for purposes of cost infliction and leverage, and so forth. Whether individual constitutional claims are to be charged with any of these faults is a case by case question.

  • Walter, would you be making this argument on this matter if President Clinton (2017-?) had filled the Scalia seat with a progressive Justice sympathetic to the views of the near majority of judges on the Seventh Circuit that requiring unions to represent non-dues paying members in collective bargaining constituted a violation of the Takings Clause?

    The quick and easy reliance upon “our” members of the Supreme Court rather than slogging through the messy state and federal legislative processes has led to a cancer on our entire political process. Increasingly, presidential elections are being viewed by insiders such as yourself as primarily, a way to accomplish policy goals via the judiciary or at the very least, not allowing the bad guys to make their political preferences constitutional law. Having really strong beliefs about a given issue does not mean that a justice should use his non-elected position to elevate said views to being constitutionally protected.

    We now have a Supreme Court where every member attended Harvard or Yale Law School, and where a majority (I believe) have served as Supreme Court clerks. Maybe it’s time to have more justices like Jackson, Black,and Powell with backgrounds that include much more legal and life experience than what dominates the Court today. And what dominates the think tanks and law school faculties.

    • The question of whether the courts should enforce individual rights found in the Constitution is not one that should change by administration. Although I cannot speak for colleagues at Cato who file amicus briefs, I think their viewpoint on that has not changed from one administration to the next either.

      As for whether it takes an “insider” (thanks, but no thanks) to view presidential elections as a way of “not allowing the bad guys to make their political preferences constitutional law,” I would note that opinion polls found large sectors of the voting public, especially on the Republican side, had exactly that issue in mind as important to their vote.

      Your comments about bringing in Justices from more backgrounds, like some of your other points, seem to be aimed at a straw or absent opponent rather than at things I myself have written.

    • PaulB, your posts are curious. It seems plain that all Members of the Court would agree that the mandatory due-paying regime impacts First Amendment rights of workers. So is the idea that if First Amendment interests are implicated by complex schemes and the interplay of federal law and state actors, then the courts should stay out of it? Walter’s point, it seemed to me, put in technical litigation terms is that the interests of the government employees need to be taken into account when resolving the union vs. state dispute. (See Martin v. Wilks).

      From a purely legal standpoint, that doesn’t seem objectionable. Maybe the feds cannot force unions to represent the non-dues payers without violating the Takings Clause (a fair argument), but it doesn’t then follow that the states have the power to extract fees from their employees to remedy that situation. The learned Dane County state judge seems to have missed that day in law school, as did the five members of the Seventh Circuit.

      In other words, you cannot override the employees’ First Amendment rights to protect the Fifth Amendment rights of the union.

  • The government can make me pay for that [] group of congress critters from my state. I do not see that they have the authority to make me pay for some union []’s! The constitution does not give me rights, it merely provides the government a little authority in order to help us all just get along. What ever happened to the whim of the majority not imposing on the rights of the minority? I do not believe forced unionization is legal, and I do not believe that forcing me to pay for the representation that I disagree with is compliant with the limits of constitutional power I have granted the federal government.