The Daily - Justice Kennedy’s Last Decision

Episode Date: June 29, 2018

With Justice Anthony Kennedy announcing his retirement from the Supreme Court, little attention was paid to his final ruling. It’s one that could forever alter the role of labor unions. Guest: Noam Scheiber, who covers labor for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, on the same day that Justice Kennedy announced his retirement, little attention was paid to a Supreme Court ruling that could forever alter the role of labor unions. could forever alter the role of labor unions. It's Friday, June 29th. So there's a case at the Supreme Court, Janice V. Asme, and the plaintiff in that case is Mark Janice.

I'm Mark Janice. I live in Springfield, Illinois. I would say I'm just an average guy. I'm a middle-class person that goes to work every day, enjoys my activities, got my kids that I love dearly. He is a child support specialist at the Illinois Department of Health Care and Family Services. Noam Scheiber covers labor for The Times. covers labor for the times. And as part of his status as a government worker in Springfield,

he has to pay a mandatory union fee even if he chooses not to belong to the union, which he has chosen not to do. I work for health care and family services, and I'm forced to pay money to a union that then supports political causes that I don't agree with. And he feels like he effectively has to subsidize the union's political stands, even though he disagrees with them. There is a group of us that disagree, and we don't want to

pay. And in a sense, he's challenging a decision by the Supreme Court that the court reached in 1977 on a very similar question about whether people who choose not to be members of a union can be forced to pay to essentially subsidize the union's political activities. We'll hear arguments next in 1153, Abood against Detroit Board of Education. So that 1977 case was called Abood v. Detroit Board of Education. I represent the appellant dissident schoolteachers in Detroit. It involved a public school teacher named D. Louis Abood. Who have declined willingly to pay dues to the appellee union.

Who didn't like the way that his union was participating in local elections. He disagreed with their political positions, essentially. The judgment and opinion of the court in 75-1153, a boot against the Detroit Board of Education, will be announced by Mr. Justice Stewart. We hold that a state law authorizing unionization at an agency shop arrangement for public sector employees is not constitutionally invalid. Unions and public sector unions in particular, which he was a member of, do essentially two things. One,

they represent you in the workplace. They negotiate your contract. They represent you in a grievance proceeding if you have problems with your boss. And two, they negotiate your contract, they represent you in a grievance proceeding if you have problems with your boss, and two, they're active in the political realm. They endorse candidates, they work to help elect candidates, and the court ruled that if you disagree with your union's political positions, you don't have to pay for those activities. Every employee represented by a union, even though not a union member, must pay to subsidize the workplace activities. So that case establishes that people in these public sector unions who work for the government have to pay into the union, regardless of whether they want to be in the union, because everyone must pay these dues.

That's right. The court essentially said that there are all these things that a union does that have nothing to do with politics. And they do them whether you want to be in the union or you don't. All those things, the court said, you still have to pay for. But there's this small percentage, often it's about 20 percent, of what the unions do that's overtly political. And the court said, you don't have to pay for that if you disagree with it. So because people had to pay their union dues, even if they didn't want to, does that mean that most people join these public sector unions that represent them? Most people, when faced with a choice of paying 100% and being

a member or paying 80% and not being a member, decided, well, 20% off is not a huge discount. I might as well just be a member and pay my 100%. And how did that decision change public sector unions? Well, this was an enormously important in the history of public sector unions because the Supreme Court reaches this decision that allows them to receive fees from people, even if they're not members. They now have a lot of revenue that may not otherwise have been available. They're able to be very, very active both in the workplace, in negotiating with their employers, but they're also able to project enormous power into the political realm. They become, throughout the 80s and 90s and really

into the last two decades, they become enormously influential political players. They're able to spend tens of millions of dollars contributing to Democratic campaigns, running ads for Democratic candidates, donating money to the Democratic Party, turning out people, registering people, funding ballot initiatives. So these two things kind of converge to create a conservative's worst nightmare. So to conservatives, public sector unions start to represent ever-growing financial obligations by government, city, state, federal, as well as a political threat because they are repeatedly backing Democratic candidates and Democratic causes. That's right. So what do conservatives do about public sector unions that threaten their agenda in this way? Well, conservatives realize that what undergirded that 1977 Supreme Court decision was a series of state laws that essentially required workers to contribute to unions, whether they wanted to be members or not. And so they get behind a strategy, very strategically named the right to work strategy, that set its sights on these state laws.

And they realized that even if they couldn't get the court to overturn those laws as unconstitutional, they could go state by state and find politicians in each state who would undo those laws. And that's what they started doing. Today, Indiana became the 23rd right-to-work state in the country. It's also the first state to pass such legislation in over a decade. And how successful was this right-to-work strategy? In the early part of this decade, it really starts to gather some momentum. Michigan is set to become the nation's 24th right-to-work state today. Yes, it's really true. Right-to-work in Michigan. Thought it would never happen. It is the latest blow to organized labor. Wisconsin is now the 25th state to pass a right-to-work bill. Wisconsin is the heart of the industrial Midwest

where unions were strong and powerful. So to see that sort of collapse in the form of a right-to-work law is pretty dramatic. And so by the middle part of this decade, by 2015, there are more than 25 states that are right to work for public sector workers. You don't have to pay any fees at all to a union if you decide you don't

want to be a member. So by 2015, half the country is governed by right to work laws. That feels like a very big victory for this conservative effort to dismantle unions. It is a big victory, but you have to remember which states are still unaffected by right to work, like California, Illinois, Pennsylvania, New York. These are states with enormously powerful public sector unions, and it would be very, very difficult to do a successful right to work strategy in those states. to do a successful right-to-work strategy in those states. And so that's when the idea of starting to turn to the courts really crystallizes. And it brings conservatives and conservative groups to look for a perfect plaintiff,

a plaintiff that would look a lot like Mark Janus. We'll hear argument first this morning in case 16-14-66, Janus versus the American Federation of State, County, and Municipal Employees. Mr. Messinger. Mr. Chief Justice, and may it please the court. A boot should be overruled because it failed to apply heightened First Amendment scrutiny to a compulsory fee for speech to influence governmental policy. So once they find their plaintiff, Mark Janus, what argument do they make once they get there? Well, what Janus says is, look, you can't disentangle what the union does in the political realm from what it does everywhere else.

When the union sits across the table from a representative of the governor and negotiates a contract. That's increasing state spending. And that's essentially a political activity too. Unions negotiate about a lot of stuff. Teachers unions say might negotiate over performance incentives. They might negotiate over curriculum. There are all kinds of public policy questions that unions actually do negotiate about. So it's not a crazy idea that there's more political activity than just endorsing candidates and making campaign contributions. So conservatives are seeing the work of unions, even when it's about education issues and how people are paid, and they see a liberal democratic cast to that advocacy and to those outcomes.

Absolutely. Why do you think that conservatives chose this moment to take this argument to the Supreme Court? It's been, as we've discussed, four decades since that first case reached the court. Is there something about this moment that convinced conservatives that they had a good chance at the highest court that they didn't have over the past few decades? Well, I think you had a couple of things going on over the past 40 years. One, over time, conservatives are getting better and better at making the argument that public sector unions are really

corrupting public policy. That used to be more of an extreme outlier argument, but conservatives have gotten a lot of traction, a lot of mainstream traction in making that case in the last decade or two. So that's going on in the political realm. And then in the legal realm, you're starting to see Republican and conservative judges that are a lot more open to this argument that these kinds of laws are unconstitutional. And Neil Gorsuch is the perfect archetype of this new type of conservative justice, very free market in his orientation, very libertarian, and someone who would be absolutely sympathetic to this argument that the state laws requiring mandatory fees are unconstitutional.

I do now have Mark Janus and his lawyer, Jacob Hubert, with us now right outside the Supreme Court. So after years and years of behind-the-scenes work by conservatives. This case finally goes before the Supreme Court this year. And on Wednesday, we get the decision, which, as it turns out, was the last decision of the session and the last decision that Justice Kennedy will ever make on the Supreme Court. What happens? Well, we were very optimistic. We were hopeful that it would go our direction. And now that it has, it's been a very, very enjoyable decision.

I'm just ecstatic and fantastically excited. So the Supreme Court rules that the state laws requiring people like Mark Janus to pay fees to their union essentially violates his First Amendment rights. It forces him to subsidize speech that he doesn't agree with. But absolutely, it sounded like this ruling gives us everything we asked for. It says that government workers have the right to choose whether they're going to give any money to a public sector union. So, on its face, this seems like a very bad decision for public sector unions, perhaps one that could even start to cripple their power. What do you think happens to these unions after this ruling. That's right. Honest face, this is looking really dire. This is a decision that basically makes

the entire country right to work. And what we've seen on the state level when states go right to work is that union revenues go down, union membership goes way down, because why would you pay fees to a union if you don't have to, if you could get all of your money back?

But it turns out it's a little more complicated. West Virginia's public schools are closed for a third day after an historic statewide teacher walkout. For a fourth day, every public school in the state is closed as thousands of teachers protest on the steps of the state capitol, demanding better pay and benefits. Now on their seventh day of a wildcat unauthorized strike. We're in this moment that I think no one probably would have predicted when we started down this path of incredible energy on the part of workers, incredible progressive activism. And all this is happening in one of the most conservative states in the union. I think the best example of this is earlier this year, we saw teachers in some very, very red states like West Virginia and Oklahoma walk off the job to protest the underfunding of education. And they essentially were able to get their way just by the power of their mobilization.

just by the power of their mobilization. He says it's a deal. He says there's a 5% pay raise, not just for teachers, but for all state employees, which is more than we started with this morning. Just by essentially locking arms and deciding that they're not gonna take it, they were able to get their way. So you're saying that even without mandatory union dues, government workers are still organizing and maybe organizing more than they had with mandatory union dues, and that

unions might actually thrive in this moment. That's right. I mean, if you think about a world where union fees are mandatory, that's a world where your union doesn't really have to be in the customer service business, right? They get your money. And if they never see you or hear from you and you never hear from them, that's fine because they've got your money. But for the past three years, the unions knew they were very likely to be in a world that didn't allow them to collect these fees automatically.

And in that world, they had to very aggressively court their members. They had to understand what their members cared about. They had to respond to those concerns. And so for the past three years, they've been very, very aggressive about being in the customer service business and about listening to their members and about conveying the value of union membership. And that's just a very different world than we lived in even five years ago. That's fascinating. So arguably, public sector unions had become kind of complacent because the dues were mandatory. People essentially had to be members. And this decision and the right to work movement has made unions become more responsive, have to work harder for their members to want to be part of it. There's no question that that's

the case. And in more candid moments, the leaders of the major public sector unions will acknowledge that. They will acknowledge that they became very complacent and that while they're very much going to miss these fees, they will acknowledge that it's made them work harder than ever before. And that's led to a much healthier relationship with their members. They're having a much easier time mobilizing their members to do things that they considered important. For example, protesting cuts to public education. I have to think that that was not the intent of the conservatives who put forward this perfect plaintiff, Janice, and this perfect case, that they might actually turn public sector unions into more robust, nimble, responsive groups?

I think there is a case to be made that the conservative strategy of going state by state and securing these state right-to-work victories was actually the optimal strategy. And that by trying to do this on a national level through a court decision, you are actually creating a backlash and a kind of counter mobilization that you would not have courted had you just done this more below the radar and on a state by state basis. So quite unexpectedly, it's possible that Janus and decisions like it might actually strengthen public sector unions. and decisions like it might actually strengthen public sector unions. In this moment of heightened political activity, it may be the case that the national strategy creates a backlash that undoes a lot of the gains that conservatives have won with this ruling. Thank you, Noam.

Thank you. Thank you. The Janus case was decided 5-4. The decisive vote came from Justice Kennedy in his final ruling on the Supreme Court. We'll be right back. Here's what else you need to know today. Mr. Jordan. Thank you, Mr. Chairman. Mr. Rosenstein, why are you keeping information from Congress?

Congressman, I am not keeping any information from Congress that it's appropriate. In a few minutes, Mr. Rosenstein, I think the House of Representatives is going to say something different. During a combative hearing on Thursday, Republican members of the House Judiciary Committee, led by Congressman Jim Jordan of Ohio, accused the Deputy Attorney General, Rod Rosenstein, of deliberately withholding sensitive documents from the Russia investigation. I don't agree with you, Congressman.

I don't believe that's what they're going to say. And if they do, they'll be mistaken. I disagree, but I think in a few minutes, the House of Representatives is going to go on record saying you haven't complied with requests from a separate and equal branch of government, that you haven't complied with subpoenas, and you got seven days to get your act together.

I think that's what's going to happen in a few... And that's not Jim Jordan. I think that's the majority of the House of Representatives. In just a few minutes, I think that's going to happen. And I want to that's just that's not Jim Jordan. I think that's the how I think that's the majority House of Representatives in just a few minutes. I think that's going to happen. And I want to why you won't give us what we've asked for. Shortly after the hearing, House Republicans passed a resolution demanding that the Justice Department release the requested documents, including those related to the FBI's surveillance of the Trump campaign. Democrats called the resolution, as well as Thursday's judiciary hearing,

an attempt to undermine the broader Russia inquiry. Why are we asking questions that undermine the very people that are at the head of this investigation? I'll tell you why. Because the majority doesn't want the end and a conclusion to this investigation. And... Good afternoon, and we're coming on the air this afternoon with a conclusion to this investigation. And... Good afternoon, and we're coming on the air this afternoon

with breaking news at this hour. Police and ATF are on the scene of a shooting at the Capital Gazette newspaper that's located in Annapolis, Maryland. In the deadliest attack on U.S. journalists in decades, a man with a vendetta against the Capital Gazette, a newspaper in Maryland, stormed into its newsroom with a vendetta against the Capital Gazette, a newspaper in Maryland, stormed into its newsroom with a shotgun on Thursday,

killing five of its staff members and injuring two more. This person was prepared today to come in. This person was prepared to shoot people. His intent was to cause harm. Police said the 38-year-old suspect had a long history of conflict with the Gazette, suing its journalists for defamation and waging a social media campaign against them.

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Dolnick, Michaela Bouchard, David Krakals, Lee Mangistu, and Stella Tan. That's it for The Daily. I'm Michael Barbaro. See you Monday.