I remember when I first voted in Texas. The most striking thing about the Texas ballot is the judges. A typical ballot may include local representatives, city council, state reps, and a couple of national races. But the ballot is dominated by 40-50 judges in courts you’ve never heard of. Libertarians, Republicans, Democrats, and even the occasional Green Party justice. Coming from Colorado and Massachusetts, I was confused. Why am I electing a judge in a court I’ve never heard of whose name I don’t even recognize? Today, I’m reminded of such strange practices in American democracy. The following are some random thoughts sparked by recent news on the Supreme Court.
On Tuesday, the Supreme Court announced its ruling on Trump’s “travel ban.” Though a case against the president’s ability to limit entry into the United States on national security grounds was always going to be an uphill slog, this particular president had seemed to make it much easier by constantly, publicly insisting that his “travel ban” was an intentional restriction on Muslims to enter the country. This, of course, is unconstitutional. Even the president cannot exclude individuals entry to the country on the basis of race or religion. But the ban itself had been reworked (and then reworked) sufficiently that, apparently, those intentions were sufficiently concealed for the majority. Nonetheless, Justice Sotomayor in her dissent compared the ruling to the Korematsu case of 1944, upholding President Roosevelt’s internment of Japanese citizens. What is striking to me is that our political polarization appears mirrored within the rulings of the Supreme Court.
Unfortunately, every 5-4 decision in this court is going to recall the unprecedented power grab orchestrated by Mitch McConnell when he denied Merrick Garland a hearing, following President Obama’s nomination, and then repealed the filibuster in Supreme Court nominations — effectively eliminating the minority’s power to protest. The fact that these 9 justices exercise so much power for so long makes the process of nominating them incredibly politically charged. With Kennedy’s announced retirement and the Democrats promising retribution for Garland, the politics of the court will only get more ugly.
And yesterday’s decision on public-sector unions has me feeling a bit desperate. I remember Samuel Alito’s nomination hearings. He, more than any other justice I remember, was responsible for introducing stare decisis into the common lexicon. Maybe that’s because he said so little else of substance when pressed on how his political views would inform his judgeship. At any rate, his majority opinion — which, by the way, will impact teachers more than any other sector of the workforce — is remarkable for overturning a 40-year old precedent that had held that agency fees were warranted in the case of unions. Alito’s argument is summarized by Amy Howe at Scotus blog. I excerpt here:
Stare decisis is “at its weakest,” Alito reminded his readers, in cases involving the interpretation of the Constitution, “because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Moreover, he added, the doctrine “applies with perhaps least force of all to decisions that wrongly denied First Amendment rights.” Because “[f]undamental free speech rights are at stake,” Alito concluded, there are “very strong reasons” to overrule Abood.
The free speech rights at issue here have to do with the way money is used to lobby governmental entities (who, in the case of public sector unions, also happen to be management). Political conservatives have consistently worked to align speech with money, a view no more clearly expressed than in the Citizens United case. I argued against some early opinion pieces in this direction on this blog many years ago. It’s very troubling when the First Amendment freedoms are identified with financial power because nothing is less evenly distributed in today’s United States than money. But, as a fundamental right of our democracy, free speech must be a right that all have access to exercise equally. When money is speech, that simply will not be the case.
At any rate, back to stare decisis. The reason the courts defer to precedent is so that they do not undermine their credibility and also maintain predictability in terms of both the perception and impact of their decisions. One wonders why these concerns are not pressing in the case of Aboos. As Elena Kagan writes in her dissent (again from SCOTUS Blog):
Kagan complained that there “are no special justifications for reversing Abood”: ”To the contrary,” she argued, “all that is ‘special’ in this case—especially the massive reliance interests at stake—demands retaining Abood.” Kagan stressed that the Abood ruling “is deeply entrenched,” as over “20 States have statutory schemes built on the decision” that “underpin thousands of ongoing contracts involving millions of employees.” Kagan criticized the majority for acting, in her view, “with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans.”
This decision will surely be devastating to current Police, Fire Fighter, and Teacher unions. Private-sector union membership has been decimated. Now public-sector union membership will probably also decline. It’s ironic that the death blow to unions has been delivered in the name of the First Amendment, given that unions are intended to provide a voice for workers at the table with management.
I guess I would search for ways to make this more palatable to myself, but I just don’t trust the judicial process much anymore. It reeks of partisanship. And with Kennedy’s departure, I’m afraid the worm will finally turn. The Robert’s Court will begin a long period of very conservative rulings that will shape culture and law for many, many decades. After Trump chooses his nominee and congress stamps it, the court will have a solid 5-vote majority of conservative jurists with Clarence Thomas, the oldest of the bunch, only seventy years old (Kennedy is 81). While Roberts has shown his willingness to break from the conservative block in several high-profile cases and Gorsuch has hinted that he might be willing to do so, Alito and Thomas have voted together 94% of the time. Incredibly, the conservative consolidation of the highest court will occur at a time when the public opinion is moving in the opposite direction. It looks like justice will only get more political in the years to come.