— by Ian Millhiser
When the Supreme Court met last January to hear an aggressive attempt to defund public sector unions, the news looked grim for organized workers. All five of the Court’s conservatives seemed ready to accept the plaintiffs’ legal arguments, a result that would have potentially had catastrophic financial consequences for many unions.
Then Justice Antonin Scalia died, and the anti-union litigants lost the fifth vote they needed to prevail.
On Tuesday, the Supreme Court announced the widely expected consequence of Scalia’s encounter with his own mortality. In a single-sentence order, the Supreme Court announced that the judgment of a lower court rejecting this effort to defund public sector unions “is affirmed by an equally divided court.” Friedrichs v. California Teachers Association is dead. A four-decade-old opinion protecting public sector unions shall live to see another day.
Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.
Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.
To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.
The purpose of these fees is to ensure that non-members do not get something for nothing; they require those non-members to pay their share of the costs of obtaining the benefits of being in a union.
Prior to Friedrichs, the Court took two incrementalsteps in the direction of an eventual decision abolishing agency fees. Friedrichs was widely expected to be that decision. Instead, with the Court split 4-4, Friedrichs will have no effect and the Court’s previous precedents permitting agency fees will remain good law, binding on all lower court judges.
Ultimately, however, Tuesdays’ non-decision in Friedrichs only heightens the stakes in the battle to replace Scalia. If Scalia is replaced by a relatively liberal justice, whether that new justice is Supreme Court nominee Merrick Garland or someone else, then it is exceedingly likely that agency fees will continue to be legal. Should Scalia be replaced by another conservative, however, then Tuesday’s order will likely provide to be only a brief stay of execution for public sector unions.
It was supposed to be an epic battle over the fate of Roe v. Wade.
Next week, the Supreme Court hears oral arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s ambitious anti-abortion law HB2. If this law is upheld — a very real possibility in a conservative Supreme Court — Roe v. Wade would have most likely remained alive in name only. States would gain sweeping new power to shut down abortion clinics, so long as they dressed up the laws they enacted to end access to abortion as health regulations.
Except that opponents of abortion no longer have the fifth vote they need to gut Roe. Justice Antonin Scalia’s death means that Roe shall live at least another year. Whether it survives past next year, however, could very well be decided by whoever gets to fill Scalia’s seat.
AUL, moreover, does not hide its goal in pushing such legislation — as ThinkProgress’ Erica Hellerstein reported, AUL functions as a “legislation mill” producing anti-abortion bills that can be copied and enacted in many states. The anti-abortion group brags on their website that they work “through the law and legislative process to one end: Achieving comprehensive legal protection for human life from conception to natural death.” Overruling Roe v. Wade, according to AUL, “can be accomplished through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”
Just over one week ago, Whole Woman’s Health appeared poised to become AUL’s crowning achievement. Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may not enact laws that place an “undue burden” a woman’s right to choose abortion — a vague standard that’s proved quite malleable in the hands of abortion opponents. At the same time, states may legitimately regulate all medical clinics, including those that provide abortions, to protect the health of individuals who seek treatment from those clinics. Whole Woman’s Health asks what happens when a state enacts abortion restrictions disguised as health regulations.
The clinic regulations and credentialing requirements at issue in this case will do little, if anything, to advance women’s health. But they make it a whole lot harder to obtain an abortion. Thus, a decision upholding HB2 could potentially return women to a world much like the one that existed prior to Roe. States may not actually be allowed to openly ban abortion after such a decision, but they’d have broad authority to restrict abortion just so long as they are clever enough to devise anti-abortion laws that look like health laws. And if state lawmakers proved inept at this task, groups like AUL would be more than happy to give them a hand.
Now, however, with Scalia’s seat vacant and the Court evenly divided between Democratic and Republican appointees, the likelihood HB2 will be upheld outright is vanishingly small.
No Longer The Man in the Middle
Before Scalia’s unexpected death, all eyes were on Justice Anthony Kennedy, the closest thing the Roberts Court has to a swing vote on abortion. As a general rule, if your plan of attack against an abortion restriction depends on winning Kennedy’s approval, you need a better plan. Prior to HB2, Justice Kennedy considered 21 abortion restrictions as a member of the Supreme Court andallowed 20 of them to take effect. In one case, Kennedy justified an abortion restriction in part because he thought that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”
Yet, while Kennedy’s opinions reveal an almost visceral revulsion towards abortion, he’s also proved unwilling to overrule Roe outright. Kennedy co-authored the Casey opinion, which limited abortion rights, but which also purported to hold that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”
Thus, before conservatives lost their majority on the Supreme Court, the most important question in Whole Woman’s Health was likely to be which Justice Kennedy shows up to work next week — the one that consistently upholds abortion restrictions or the one that is unwilling to invalidate Roe in its entirety. Kennedy, moreover, gave hope to Team Choice when he cast the fifth vote to stay a lower court order upholding nearly all of HB2.
Now that the Court is evenly divided between liberals and conservatives, Kennedy no longer has the power to drive a nail in Roe‘s coffin, but he could still have the power to do considerable damage to the right to choose. The ordinary rule when the Court splits 4-4 is that the lower court’s decision is affirmed and the justices’ decision does not have any precedential value. Because the court of appeals largely upheld HB2, a 4-4 decision in Whole Woman’s Health would allow the Texas law to almost entirely remain in effect — at least until a fifth justice is confirmed to the Court and another abortion case reaches the justices.
Thus, as Cosmopolitan’s Jill Filipovic notes, Scalia’s death may actually make it more likely that Justice Kennedy votes to uphold HB2. “If Scalia were still alive, Kennedy might be choosing between overturning Roe and invalidating the Texas law,” Filipovic writes. Now, however, he doesn’t have to choose between two options that he’s likely to view as undesirable. Rather, if he sides with the conservatives he will leave lower court’s opinion in place without creating a precedent he may later come to regret. “For this particular justice, who seems to find abortion troubling but may not want to see it outlawed wholesale,” Filipovic notes, “that may be a desirable outcome.”
There is, however, some uncertainty about whether Kennedy will have this option. As SCOTUSBlog’s Tom Goldstein notes, the Court’s past practice when a vacancy opened in the middle of a term was to hold cases where the justices split over until the next term, when the open seat presumably would be filled. Given the extraordinary obstructionism Senate Majority Leader Mitch McConnell (R-KY) has already planned against anyone President Obama sends up to fill this seat, it remains to be seen whether the justices will decide to hold over split decisions until next term or simply affirm the case by an evenly divided vote and be done with it.
Which process they choose could matter a great deal in Whole Woman’s Health. Recall that Kennedy provided the fifth vote to stay the lower court’s decision upholding HB2. That order provides that the stay shall last until “the issuance of the judgment of this Court.” Thus, if the Court holds the case over for reargument next term, the stay remains in effect until the Court decides the case, and HB2 does not go into effect. If the Court affirms the lower court by an evenly divided vote, by contrast, that counts as a “judgment” of the Supreme Court, so the clinics most impacted by HB2 will close.
The choice whether to hold the case over could also matter for an entirely different reason. If President Obama (or a similarly minded president) manages to fill Justice Scalia’s seat, one of the first matters taken up by the Court’s new liberal majority would be a major abortion case. That would not only give them the opportunity to strike down HB2, it would also give them the chance to expand a right to choose that has been gradually chipped away after decades of conservative decisions. The vague “undue burden” standard that now controls abortion cases was pushed by abortion opponents including the Reagan Justice Department and AUL itself before it was ultimately adopted by the Supreme Court. A more liberal Court could scrap this standard altogether or, at the very least, clarify it in a way that does not permit anti-abortion judges to take advantage of its vagueness.
Rather than becoming AUL’s crowning achievement, in other words, Whole Woman’s Health could be their most demoralizing defeat.
Yet that outcome depends entirely on who gets to fill Justice Scalia’s seat. If the next justice is more like Scalia, Whole Woman’s Health could still become AUL’s greatest triumph.
Town of Greece v. Galloway is the case that proponents of the separation of church and state have feared ever since Justice Sandra Day O’Connor left the Supreme Court in 2006. It strikes at the heart of the constitutional prohibition on government endorsement of religious doctrine or belief. And it brings religious conservatives within inches of a victory they have sought for more than two decades. For the sort of people who believe America should be a “Christian nation,” today is a today to celebrate.
To explain, Justice O’Connor was the Court’s leading supporter of the view that government may not endorse a particular religious belief or take any action that could convey such a “message of endorsement to the reasonable observer.” This view placed her sharply at odds with the four other conservatives on the Rehnquist Court. Thus, when O’Connor was replaced with the much more conservative Justice Samuel Alito, most Court watchers expected this prohibition on government endorsements of religion to fall in short order. The most surprising thing about the Town of Greece decision isn’t that begins the process of doing so — it is that it took the Roberts Court this long to reach such a decision.
Though Justice Anthony Kennedy’s opinion in Town of Greece does not explicitly eliminate the ban on government endorsements of religion, it strongly suggests that the end of this ban is nigh. As Kennedy explains, this ban derives from a case called County of Allegheny v. ACLU, which “held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establishment Clause because it had ‘the effect of endorsing a patently Christian message.’” Four dissenters, according to Kennedy, “disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society.” One of those dissenters was Kennedy.
Town of Greece is a case about legislative prayer — that is, it is about whether lawmaking bodies can open their session with a prayer that is often, if not always, explicitly Christian. On the surface, Kennedy limits his treatment of the ban on government endorsements of religion to the context of legislative prayer, writing that there was no suggestion in a key precedent “that the constitutionality of legislative prayer turns on the neutrality of its content.” That key precedent is a case known as Marsh v. Chambers, which gave legislative prayers special immunity from the Constitution’s ban on establishments of religion.
Given the fact that legislative prayer already enjoyed special constitutional status even before Town of Greece, supporters of a robust separation of church and state are likely to argue that the ban on government endorsements of religion still exists outside of the context of legislative prayer. They are unlikely to succeed, however, in the long run. There may have been four justices who opposed that ban when County of Allegheny was decided. But there are almost certainly five right now.
The later part of Kennedy’s opinion, which is joined only by Chief Justice John Roberts and Justice Alito, focuses on a weaker limit on government efforts to advance religious faith that Kennedy has supported in the past. Twenty-two years ago, Kennedy wrote for the Court that “government may not coerce anyone to support or participate in religion or its exercise.” He reiterates that holding today, but he adds that the legislative prayer at issue in this case does not constitute religious coercion. “The analysis would be different if town board members directed the public to participate in the prayers,” Kennedy writes, or if they “singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Similarly, “[a] practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.”
This final portion of Kennedy’s analysis is joined by just three justices because Justice Antonin Scalia joins an opinion by Justice Clarence Thomas calling for the Court to go even further. To Scalia and Thomas, the only kind of religious coercion banned by the Constitution is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty” (emphasis in original). So unless the government threatens to jail or fine you for failing to pray, lawmakers can more or less do whatever they want. (Indeed, Thomas would go even further than that. In a section of his opinion that Scalia declines to join, Thomas writes that the “Establishment Clause is ‘best understood as a federalism provision.’” This means that Thomas believes that the separation of church and state applies to the federal government only.)
The upshot of today’s opinion is that Kennedy and his fellow conservatives have finally begun a project they were expected to begin the day O’Connor retired. By the time this project finishes, it is unlikely that many limits will remain on overt government endorsements of religious faith.
— by Erin Neff, Executive Director, ProgressNow Nevada
The majority on the U.S. Supreme Court continues to stridently put politics above justice as it finishes its radical term this week.
Today the court upheld the most controversial aspect of Arizona’s immigration law — the portion that all but sanctions racial profiling. While the court did strike down the majority of the law as unconstitutional, some of the conservative justices wanted to uphold the entire thing.
And Justice Antonin Scalia, a Reagan appointee, used the bench to speak out about President Obama’s recent executive order giving “dreamers” (those who would qualify under the DREAM Act) a path to citizenship.
Today the court upheld its horrific Citizens United opinion by overturning an attempt by Montana to try to regulate the unfettered corporate money in its political system.
This radical Roberts Court is the precise reason Sheldon Adelson can spend tens of millions of dollars to try to impact the presidential election. It’s the reason the Koch Brothers, Karl Rove and their affiliated “non-profits” have spent multiple millions on ads calling for the repeal of health care reform.
In Nevada, these groups have spent $4.4 million on TV ads calling for the repeal of Obamacare. They’ve outspent supporters of health insurance 4-to-1. Citizen’s United will never create an even system because it allows those with the money to speak the loudest.
On Thursday, the court is expected to announce its decision on the Affordable Care Act as corporations and their puppet on the presidential trail scream for repeal.
We know there’s power in people. And we’re thankful Obamacare has insured 22,000 young adults and 750 people with pre-existing conditions right here in Nevada.
Check out this video thanking Obamacare for providing access to health coverage for millions of Americans. Watch it and share it. Together we can stand up to the corporate money. Together we can stand against a radical court. And together we can say Thanks Obamacare.