SCOTUS Conservatives Guilty of “Weaponizing the First Amendment” in Janus Ruling.

Thursday, June 28, 2018

In a predictable ruling announced on Wednesday, the five conservative members of the Supreme Court of the United States ruled in favor of the petitioner, Mark Janus, in the case of Janus v. American Federation of State, County, and Municipal Employees (AFSCME).

Using the veil of the absolute sanctity of the First Amendment, the judges who sided with Janus decided that people who benefit from services provided by a union don’t have to pay their share of the fees for those services.

In writing her dissent to the 5-4 opinion, Justice Elana Kagan scathingly rebuked the notions put forth by her conservative colleagues on the court.  Kagan wrote, “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years.  As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.  And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Kagan was joined in her dissent by three other respected members of the Supreme Court; Justice Stephen Breyer, Justice Ruth Bader Ginsberg and Justice Sonia Sotomayor

Concurring with the dissent, Justice Sotomayor wrote, “Having seen the troubling development in First Amendment jurisprudence over the years, both in this Court and in lower courts, I agree fully with Justice Kagan that Sorrell [A First Amendment case decided by the Supreme Court in 2011]—in the way it has been read by this Court—has allowed courts to ‘wield the First Amendment in . . . an aggressive way’ just as the majority does today.”

The Court’s decision in Janus came as no surprise to anyone who follows union issues.  Justice Samuel Alito has hinted for years that he wished to see the Court revisit the Abood v. Detroit Board of Education case (Abood) that had established the law on union agency fees for decades.

It was also no surprise that those in a position to profit from the prospect of having a weaker union to contend with at the negotiating table, would endorse the side of Mr. Janus in this case.

Read the article below on the corporate interests that provided financial, legal and logistical support to Janus.

In the Fall of 2015, the Friedrichs v. California Teachers Association case, based also on a challenge to the Court’s ruling in Abood, seemed destined to go against the unions.  Then in February of 2016, before the ruling was announced, Judge Antonin Scalia died, depriving the court’s conservatives of their crucial fifth vote.  That case ended up in a 4-4 deadlock and was sent back to the lower court that ruled in favor of the unions.

In November of 2016, the nation had the opportunity to elect the President who would appoint the judge that would replace Justice Scalia, and in so doing, break the 4-4 deadlock and tilt the scales of justice either towards or away from opinions that would favor organized labor.

Soon after his election, President Trump nominated Neil Gorsuch to the Supreme Court, a jurist with a long record of rulings against the rights of public sector workers.  In the Janus case, Judge Gorsuch cast the decisive vote needed by conservatives to sway the decision in their favor.

The response to the ruling by the Court in Janus from public sector union leaders was swift and resolute.

New York State AFL-CIO President, Mario Cilento, said, “Improving the lives of all working men and women is what defines us, not one court case.” “The Janus v. AFSCME case has always been a thinly veiled attack on the rights of all working people to join together and speak with one voice.  New York’s labor movement, with 2.5 million members, will remain strong.  In fact, today’s decision will only make us stronger and more determined to fight for better wages, benefits and conditions of employment, as well as for a brighter future for all workers and their families.”

United Federation of Teachers (UFT) President, Michael Mulgrew, issued a statement on the UFT website representing the views of over 200,000 teachers, nurses and other professionals working in New York City.

Mulgrew said, “The Janus decision reflects years of scheming by forces desperate to destroy workers' rights and to undermine public education.  These people think that their money, power and privilege give them the right to rig the system in their favor.  But our union will remain strong, and we will not be silenced.  Everything we have been able to accomplish for our members and our students has come from our ability to work together, and we will continue to fight for the rights of workers, their families and for public education.”

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