Friedrichs, the Roberts Court, and the willful ignorance of privilege

Yesterday, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association. If the discussion yesterday is any indication—and usually it’s a pretty good one—the Supreme Court seems poised to make a serious blow against public employee unions. And it’s part of a pattern: this Supreme Court’s credence of arguments that support privilege. This time, it’s public employees who will suffer.

For anyone not following the case, the issue is whether public employees at unionized workplaces who are not union members must pay an agency fee, that is, their portion of the costs of administering the union. The plaintiffs argue that being so compelled violates their First Amendment rights, because bargaining with public entities is inherently political, and thus they are being forced to support political activity with which they disagree. Based upon the discussion yesterday, the Court with side with the plaintiffs.

Part of the justices’ reasoning reflects, especially, Justice Kennedy’s expansive definition of the First Amendment. He’s the one who wrote the majority opinion in Citizens United, the case that gutted campaign finance laws and allowed for the flood of super pac and what observers call “dark money” into the political system. Engineered by Chief Justice Roberts, who went to great lengths to explain how the decision was not as radical as it really was, that decision held that corporations had the same First Amendment rights as people do. (I would have been interested to hear how Scalia, the Court’s “originalist,” would have managed to justify this based upon the thoughts of the founders, who certainly knew the difference.) We all know how that turned out, much as predicted in Justice Stevens’s dissent: big money dominating American politics, to the detriment of the vast majority of us who don’t pine for the robber barons of yore or yearn for an Ayn Randian future.

The reason for the agency fee that the Friedrichs defendants find objectionable is that it solves the free-rider problem, namely, that collective bargaining, maintaining a union, and defending employees costs money, and given that unions are legally obligated to do these things on behalf of all employees in a unionized workplace, everyone should pay. Otherwise, the temptation would be for employees not to pay, and unions would be crippled.

In arguments yesterday, Justice Kennedy, amazingly, turned the “free rider” problem on its head, calling calling rather “compelled rider.” At least his logic, though actually similar, was better articulated than that of one of the plaintiffs, a California teacher who says that “I get to choose what movie I want to go see… I get to choose what church I want to go to. I get to choose what gym I want to join,” and likens that choice to that over the agency fee.  But that, I would argue, is exactly the problem: paying for union representation is a significant choice about whether everyone should have to bear the cost of supporting an institution from which they benefit, and which, by law, is obligated to undertake resource-depleting actions that benefit them. Furthermore, those actions aren’t in a vacuum: contrary to conservatives’ complaints (and that of the ultra-rich backers who found the plaintiffs and paid for their lawsuit), the balance of power in the public workplace has always been and will ever be with the employer, and this gives employers yet another wedge against the ability of employees to act collectively.

Which makes me wonder what would happen if the same arguments were made concerning taxes. How many people would pay their full taxes, if we could decide to withhold some or all of them based upon our consideration of government actions or positions, or our own selfishness?

Some of the Court majority’s attitude appears to be a willful ignorance that people in power, or for that matter pretty much anyone, could possibly be bad actors. On the one hand, such a stance implies, the ultrawealthy aren’t likely to buy elections, and the public isn’t likely to perceive that they are. On the other, it’s not conceivable that employees might want the protections that unions provide without having to pay for those protections.

More disturbingly, much of the Court majority’s attitude appears to reflect a willful ignorance of the damage that can be done to those not in power.

Case in point: the perverse logic that the Roberts Court has used in affirmative action cases. As New York Times legal observer Linda Greenhouse has noted, “The court pays great deference to claims by members of the white majority to injury from race-conscious policies,” but “requires members of minority groups to prove that disadvantageous official policies or practices reflect a purpose to discriminate, a very high bar to meet.”

It seems, then, that there’s a very clear thread. The Roberts Court, or at least its majority, has consistently shown its willingness and even eagerness to go to great lengths to take positions that will benefit the privileged, even when those positions are, on their face, difficult to defend through logic or evidence, especially in terms of historic and systemic issues of power and privilege. The discussion in Friedrichs yesterday followed that pattern.

For those of us who believe that the United States can do better, we’ve once again discovered that evidence, logic, and empathy are necessary, but not sufficient. That’s especially a hard blow to us academics, who have taken it as our calling to foster critical thought and empathy among our students and the greater public. We must not abandon that goal. But as those of us in the labor movement recognize, our response must be the same as it ever has been: organize, organize, organize.


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