Supreme Court and Right to Work

Soon the Supreme Court may be able to achieve in one opinion what it has taken 67 years for anti-union forces to do in 24 states.  The United States itself may become the next and final ‘Right to Work’ state.

The case is Harris v. Quinn and it was argued before the court on January 21. Nobody  expected the hearing to explode into a case of landscape-shifting potential but it did. Pamela Harris is a home-based personal care worker in Illinois.  She sued Governor Quinn and claimed  that the compelled payment of union dues was a form of forced speech prohibited by the First Amendment.  That is the kernel deeply embedded in judicial procedure by now and that unresolved issue is enough to pose a grievous threat to public sector unionism.  Upholding the claim could impose the ‘Right to Work’ formula - instead of a state-by-state choice - as the law of the land.

‘Right to Work’ is a phrase that follows a tradition of naming laws in a way to telegraph how you are meant to think of them, especially when their meaning and intent is fiercely contested.  The Defense of Marriage Act and the PATRIOT Act are examples.  Both are fiercely opposed by different constituencies and the names are considered to be cruel, ironic and farcical parodies of the laws’ actual intent.  Right to Work has been contemptuously renamed “right to work for less” by many who see it as a device to rob union workers of their voice and their leverage.

Anything that supports the Right to Work formula as a guide to public policy is a serious issue to workers in particular and the middle class by extension.  The union ripple effect in favor of middle class living standards is well understood.  A good introduction to this discussion is in a study by Darrell Minor.  He concludes:

To sum up, this study has found that worker-friendly states are significantly healthier, are more productive, have less poverty, and with citizens who enjoy longer life spans. In four of the seven measures (GDP per capita, poverty, insurance and life expectancy rates) so-called “right-to-work” states come out significantly (and statistically) worse.

These findings have broad policy implications in those states where lawmakers are wrongly considering RTW measures, and should inform the good efforts of union members and allies to quell those efforts. Instead of pursuing laws that actually lower the standard of living in their states, policy makers should look for ways to elevate everyone’s standard of living.

Enacting RTW laws is not only misguided, but in fact counterproductive to achieving such ends. Dr. Martin Luther King, Jr. once said, “In our glorious fight for civil rights, we must guard against being fooled by false slogans, as ‘right to work.’ It provides no ‘rights’ and no ‘works’. Its purpose is to destroy labor unions and the freedom of collective bargaining.” The evidence suggests that Dr. King was correct in this belief, and that those who would advocate for a state to enact RTW laws would also be lowering the standard of living for that state’s residents.

On the other hand, if one would rather struggle with the twists and turns of the legal questions involved in Harris v. Quinn, good luck with that.  As an oracle, I would as soon divine meaning from the strangulated entrails of a goat.  No, I consider that whole question moot: it will be delivered whole, perhaps some time in May.  

I leave the tortured divinations of the inscrutable to the justices.  But how they wear their hearts on their sleeves is a more accessible source of suspense to me:

"I'm just going to use the word here, it is a radical argument," Justice Elena Kagan told the attorney for the non-union employees. "It would radically restructure the way workplaces across this country are run."

Scalia’s view is the surprising hinge of the so-far speculative outcome.  There is a 4-to-4 split between conservatives and liberals on the bench, leaning one way or the other.  Scalia is not a usual tie-breaker.  He is stridently conservative and not a declared friend of labor.  He does, however, have some very particular and well-developed views on free speech as it relates to the 35 years of precedent that this case represents.  Scalia’s conclusion is the nail-biter.

“The rest is commentary.”  We’ll just have to wait and see.  Expect a ruling in May or June.