Rather than dive right into the latest entry in this week’s Supreme Court Parade of Horribles, let’s state for the historical record that Barack Obama’s decision to nominate Merrick Garland to replace Antonin Scalia will go down through the years as the last in a series of doomed and useless attempts to demonstrate that our politics were in any way normal, and that the American people were too smart and too good to put up with a Republican Party the brains of which were being cored out by the prion disease of which it had been Patient Zero for the previous four decades.
Not that Garland wouldn’t have been a decent justice, or that what was done to him was anything within hailing distance of normal. It’s just that the strategy—find such a nice centrist that the Republicans would look silly in opposing him—was futile, being too clever by half, and being based on Obama’s destructive belief that everyone was as reasonable about the country as he was. It is now clear that he might as well have nominated 50 Cent, Zombie William Brennan, or Flipper. It would have made no difference. On Wednesday, we saw the final payoff.
In Janus v. AFSCME, by the now customarily loathsome 5-4 margin, the Court overturned a 40-year-old precedent and determined that, by being made to pay union dues, the free-speech rights of public employees were being infringed. (The precedent, Abood v. Detroit Board of Education, argued that the compulsory union dues were justified if the dues were used to pay for the union’s collective bargaining efforts and not for political activity. On Tuesday, the Court decided simply to obliterate that distinction.)
This is a completely political decision clearly based on purely political considerations. It is a blow struck against a vital Democratic political power base. (So, of course, in other ways, were the previous decisions regarding gerrymandering and voter-suppression.) It was a long-standing goal of the dark-money interests of American conservatism, which is the only constituency about which the Republican Party gives a damn any more, and within which the careers of people like Justices Samuel Alito and Neil Gorsuch were lovingly nurtured.
(This is why I am not as sanguine as some people are that it would have made any difference whether Obama nominated an uncomfirmable liberal instead of an unconfirmable centrist. But at least the fight would have been worth it. Neither would it have made a difference in the 2016 presidential campaign, either. Hillary Rodham Clinton’s campaign kept pounding on the importance of the courts while leftier-than-thou purists accused her of “extortion” for doing so. God, I continue to hate every damn second of that election.)
That network, empowered beyond reason by the Citizens United decision and its effectiveness intensified by the disemboweling of the Voting Rights Act, was described in great detail by Ken Vogel and Noam Schreiber in The New York Times back in February, when Janus was argued.
The majority helpfully underlined this point in its decision on Tuesday.
Even assuming it’s real, which I don’t, what the hell does Janus’ concern—let alone Rauner’s concern—for Illinois budget woes have to do with weaponizing the First Amendment against the Democratic political base? At least hide it a little better than that, fellas.
So, now, there’s a free ticket to freeload on the people in your union who pay their dues, who soon will decide they are being suckers and stop paying those dues as well, and the power of public sector unions will go the way of the power of organized labor in the private sector. In addition, Alito seems to find free speech in other odd places as well.
Is this a decision in constitutional law or Scott Walker’s next re-election spot? And the undisguised glee with which Alito overrules Abood gives the rest of the game away.
As is customary now in such matters, we have the usual “blistering” dissent, this time from Justice Elena Kagan, who can clearly see a church by daylight here.
Now that this term of the Supreme Court is over, what have we learned? That untoward remarks at a committee meeting are enough to allow merchants to discriminate against gay people (Masterpiece Cake Shop), but that the Texas legislature must be assumed to have acted in good faith when it made interim voting maps—that were clearly discriminatory—permanent (Abbott v Perez), and that the president* must be presumed not to be acting out of religious bigotry in office just because he was a howling religious bigot throughout his campaign for president (Trump v. Hawaii).The basic rule going forward seems to be, feel free to be a bigot, feel free to discriminate, just don’t leave a paper trail behind you.
(Chief Justice John Roberts is being celebrated for taking the odious Koretmatsu decision out of play once and for all, despite the fact that Roberts practically wrote an instruction manual on how you could craft a Korematsu-like policy that he’d support. Just create detention camps that are open to everyone. That is now the state of American liberty.)
And freeloading is now free speech because Illinois can’t balance its budget. The Republican platform committee can take the next two years off. The Supreme Court has done its job for it.