Organized labor and some constitutional scholars reacted angrily to a U.S. Supreme Court ruling last week that could impact unions’ ability to raise money from non-union members.

 

In some states, such as California, public sector unions can collect funds from non-union members as long as leaders send out notices that explain that non-members can opt out of paying. The California union did not do this, and the Supreme Court voted 7-2 in Knox v. Service Employees’ International Union, Local 1000 that it had acted improperly. As evidenced by the decisive majority among the high court justices, this issue crossed ideological lines.

 

What disturbed the unions was that the court went beyond the issue addressed in the case. Without being asked in the case before them, the five most pro-corporate justices—John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy—decided to tack on a ruling that nullified the opt-out system and replaced it with an opt-in one that sets non-payment of added dues as the default and requires non-union members to actively choose to pay the additional fees.

 

Justice Sonia Sotomayor, in an opinion joined by Justice Ruth Bader Ginsburg, voted with the majority that the SEIU had acted improperly, but criticized the five pro-corporate justices for creating law from the bench and not allowing the defendants to address the issue since it was not raised during presentation of the case. 

 

She wrote, “The majority thus decides, for the very first time, that the First Amendment does require an opt-in system in some circumstances: the levying of a special assessment or dues increase. The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered. The majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules.” Sotomayor then supported her position by quoting opinions written by Justice Alito and Justice Scalia, both of whom had previously argued against the overreach which they, themselves, took in this case.

-David Wallechinsky

 

Court’s Conservatives Join Right Wing Attack on Unions (by Paul Gordon, People for the American Way)

What If the Supreme Court Treated Corporations Like Unions? (by Marge Baker, Huffington Post)

Justice Sonia Sotomayor’s Concurring Dissent (pdf pages 28-33)