Judicial Activism on the Roberts Court: Anti-Union Ideology Driving the Analysis

By Anne Marie Lofaso, Associate Dean for Faculty Research and Development and a law professor at West Virginia University College of Law. An extended version of this piece is posted at the Employment Policy Research Network’s blog.

On June 21, the Supreme Court decided Knox v. SEIU Local 1000, holding that the First Amendment does not permit public-sector unions in non-right-to-work states to require objecting nonmembers, absent express authorization (opt-in), to pay a special fee for the purpose of financing the union’s political and ideological activities. Until Knox, the Supreme Court had never questioned the constitutionality of the opt-out method. So long as unions did not compel union membership and periodically permitted workers to opt-out of non-chargeable expenses, any impingement on the public-sector workers’ (the objectors’) free speech had always been found to be constitutional.

The majority opinion (Justices Alito, Scalia, Kennedy, Thomas, and Chief Justice Roberts) starts by questioning the constitutionality of requiring non-members to pay even chargeable expenses. Indeed, the majority opinion questions the very existence of the non-“right to work” (RTW) state, which of course is grounded in the idea that workers should pay for representation even though they might not have voted for union representation, just as all of us still had to pay taxes to help finance the wars in Afghanistan and Iraq even though some of us (indeed, a majority of us) didn’t vote for President George W. Bush and even though we might have been ideologically opposed to President Bush’s political agenda. We do that because we are party to what is thought to be a social contract with a democratic government in which we receive the benefits and bear the burdens of majority rule. Notwithstanding these basic principles, the majority opinion dismisses the free-rider justification for compelling nonmembers to pay their fair share of representation services as “something of an anomaly.”

The majority opinion proceeds to characterize the opt-out pathway as “a remarkable boon for unions” and therefore unconstitutional. This is because, in the court’s view, “[c]ourts ‘do not presume acquiescence in the loss of fundamental rights.’” The Supreme Court, however, has presumed such acquiescence. For example, the Roberts’ Court presumed workers’ acquiescence in a union-employer agreement to waive employees’ right to a jury trial in a Title VII case. 14 Penn Plaza LLC v. Pyett (2009); see also Board of Regents of the Univ. of Wisconsin Sys. v. Southworth (2000) (holding that the“First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral”).The Court moved from that fallacious presupposition to its conclusion — that the opt-out pathway is unconstitutional because dissenting workers should not bear the burden of opting out of payments to support views that are politically distasteful to them. This is so even if the political activity actually benefits the bargaining-unit workers by, for example, lobbying for pro-worker legislation.

The question whether an opt-out is unconstitutional was neither briefed nor argued. The Court acted without the benefit of briefing on the free speech analysis of either the dissenting or the majority views regarding the opt-in-opt-out distinction. In fact, it appears it didn’t even have the benefit of its own views in previous cases insofar as it finds that its “prior cases have given surprisingly little attention to th[e] distinction” between opt-in and opt-out.

Moreover, the Court’s analysis has at least two logical flaws: It starts with a fallacious presupposition and skips quickly to its constitutional conclusion using a policy “should” rather than a legal “is” argument. This should-is flaw highlights the flagrant judicial activism of the Court’s analysis.

We might ask why the Court fails to exhibit the same sympathy for worker coercion when perpetrated by corporations as it does when perpetrated by the government or a union. In all fairness, private coercion does not ordinarily implicate the Constitution. But the Court’s main argument is not a constitutional one. The Court had never previously held that workers were required to pay for politically objectionable union activity. It had only held that it was constitutional for a union and a public employer to require objectors to opt-out. Now the court, relying on a policy argument based on who should bear the burden rather than a constitutional argument, holds for the first time that only the opt-out pathway is constitutional, at least in some circumstances. The Court’s holding, especially when read in light of its dicta questioning its prior precedent, is a major step toward declaring the non-RTW state unconstitutional as it relates to public employees. And this was all done without the benefit of briefing or oral argument. This type of judicial activism should lead us to question whether the Roberts Court views cases such as these through anti-union lenses. It should also make labor academics think about what they can do to educate people about the law, their rights, and the history of unions, which have paved the path (often funded by union dues) for every significant employment right granted in the last century.

More fundamentally, the line of cases that the court questions is part of a long line of cases, starting with Machinists v. Street (1961), dealing with unions’ use of dues money for political and non-collective-bargaining-agreement purposes, apply to private-employee as well as to public-employee unions because the unions derive their dues assessment authority from the National Labor Relations Act. See also CWA v. Beck (1988) (holding that courts, not the Board, have jurisdiction over constitutional claims arising out of dues extraction beyond chargeable expenses). For that reason, Knox could have profound political ramifications beyond its narrow holding of mandating an opt-in for special assessments in the public sector.