I was in a labor union and have been on strike; I happily paid my dues to Local 2325 of the UAW because I thought my brothers and sisters greatly benefitted from collective bargaining. But that is just my opinion, and no group of workers must be represented by a union unless a majority agrees, and no individual worker need join a union at all. But those who decline to become a member of a union that a majority of their fellow workers chose often must pay an agency fee, to reimburse the union for benefits which accrue to all.
That’s essentially the issue in Harris v. Quinn, which Kent Greenfield has already aptly described as a potential sleeper on the Supreme Court’s docket: Are workers’ First Amendment rights impaired, not by being forced to join a union (which they are not) but by being forced to pay for collective bargaining (which they are)? The Court could use the case to limit the ability of government workers to unionize, to eliminate any required payment of agency fees by non-members benefitting from the contract, or undermine the principle, embodied in the National Labor Relations Act, of exclusive representation by a single union. All of these would be unfortunate, and would require repudiation of a line of Supreme Court decisions dating to the unanimous Railway Employees v. Hanson, 351 U.S. 225 (1956), which found no problem in a federal law allowing negotiation of contracts requiring all covered workers to pay union dues, rejecting dissenting workers’ claims that mandatory payment of dues compelled "ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights."
Harris involves home health care aides provided by the state of Illinois to certain ill people through Medicaid. The case is maddening in a number of ways. The plaintiffs—represented by, among others, former Acting Solicitor General Neal Katyal—insist that the workers at issue cannot be considered government employees, even though they get paychecks and health benefits from the state, must meet qualifications set by state regulations, and perform duties as required by those regulations and by individual social service supervisors. Although the aides are “hired” and “fired” by the individual patients they serve, that is only so because the state in its generosity has delegated that authority. The patients, who pay nothing both because of the rules of the program and because they are indigent, are not in any ordinary sense “employers.”
As Americans reflect on events a half century in the past, I hope they will consider how it might guide our actions now. In particular, I hope people will think about what Americans still owe the African American community.
On August 28, 1963, the date of the March on Washington, the United States was pervasively discriminatory to a degree not fully appreciated today. African Americans bore a significant burden; in many or most parts of the country, they could not vote, attend public schools with whites, patronize the public accommodations or live in the housing that they wished, or hope to be hired for a broad range of public and private employment.
But African Americans were hardly the only oppressed group. Rape within marriage was no crime, and, although the Equal Pay Act was on the books and would take effect in 1964, employers could get around it simply by not hiring women for good jobs. The idea that gay men and lesbians might legally marry someone of the same sex was absurd; instead, investigation, prosecution, and imprisonment for sodomy were an important part of the business of law enforcement. Un-American immigrants (Africans, Jews and Catholics) were discouraged from immigrating through gerrymandered quotas; Asians were excluded by race. The list of those whose marginalization was justified and defended as obviously correct was long, and included people with mental or physical disabilities, Indians, religious minorities including Jews and Muslims, children born out of wedlock, and single mothers.
America was remade thanks to the bodies and blood of African Americans -- whites and others also participated in the civil rights movement, of course, but, primarily, it was African Americans. The civil rights struggle, exemplified by the March on Washington, had revolutionary consequences. Part of its effect was near-term changes like passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the unsung but perhaps most effective anti-racist legislation of the period, the Immigration and Nationality Act Amendments of 1965, which, by allowing for immigration on a non-racial basis, put America on the path to being a majority-minority nation.
Perhaps politicians will no longer do anything they can get away with to win elections, perhaps legislatures will no longer entrench themselves through districting and gerrymandering, perhaps, in short, in the recent past human nature has changed entirely. If not, though, the Supreme Court’s 5-4 decision invalidating the coverage formula of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 may well come to be regarded as one of the Court’s grand overreaches. As obtuse on race as Dred Scott, as judicially activist as Lochner, Shelby County moves us a long step away from the goal of reliable elections reflecting the will of the majority.
The underlying problem is that African Americans are, and have been, bloc voters to a degree matched by no other racial or ethnic group. There is, therefore, a potential electoral payoff for conservatives in suppressing or manipulating their right to vote that exists in no other context. African Americans also hold the balance of power in many jurisdictions, and because of residential segregation, can be subject to discriminatory treatment in a way that “Democrats” or even Asians or Latinos cannot. Accordingly, African Americans have always been an irresistible target for manipulation and disenfranchisement, and volumes of creative electoral provisions have been created to prevent them from voting effectively. Critically, the impulse to discriminate will remain even if racial animus has diminished, so long as political rewards for suppression remain in place.
In Shelby County, the Court, per Chief Justice Roberts, insisted that our nation had changed. It held that Congress in reenacting the Voting Rights Act in 2006, should not have used a coverage formula based on practices and registration figures from the 1960s and 1970s. The extraordinary burdens of the preclearance provisions, it explained, had to be justified by current conditions. For a variety of reasons, many outlined in Justice Ginsburg’s dissent, the holding is not persuasive.
Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.
Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color. The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder.
I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections. As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights.
The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions. Section 5 and other parts of the Voting Rights Act largely fixed that problem. Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness. Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).
By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. See “SB1070 in the Supreme Court,” their pre-oral argument analysis for ACSblog.
The argument in the SB1070 case went 20 minutes over its scheduled hour. Most of the justices' questions addressed Section 2, which requires local police to investigate the immigration status of anyone stopped by the police who they suspected of being undocumented.
Justices Kennedy and Scalia each asked the fundamental question of whether “a state must accept within its borders a person who is illegally present under federal law.” Paul Clement answered no, frankly claiming for the states the powers of deportation and border control.
Justice Scalia agreed.
This question is at the heart of the case. All provisions of SB1070 are roundabout ways of forcing undocumented aliens to leave. If Arizona has direct regulatory authority over illegal immigration, they need not operate indirectly; Arizona should just pass a law requiring the undocumented to leave, punishing them if they refuse.
Arizona did not do this because it doubts it has that power. Such a claim would be at odds with the traditional approach, as represented, for example, by Chief Justice Burger, joined by Justices White, Rehnquist & O’Connor dissenting in Plyler v. Doe,who wrote: “A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive.”
But if states do not have the power to regulate directly, then, as Mr. Clement recognized when answering this question, their claim to be able to do so indirectly is undermined.
In the modern electronic glow that seeks to cast major cases into six word headlines and sound bites, many commentators have observed that the justices supported Section 2. It was common ground among the justices and counsel that an officer acting on her own (rather than by statutory mandate) may question a suspect about immigration status, at least so long as it does not prolong a detention.
But looking at the exchanges between the Justices and the advocates, a more nuanced picture emerges.