"Power, Not Reason" on Fees in Public Unions Case?

      Justice Thurgood Marshall let out an anguished wail in 1991 when the Supreme Court overruled a decision barely four years old to prohibit the use of victim impact statements in death penalty trials. "Power, not reason, is the new currency of this Court's decisionmaking," Marshall wrote in his dissent in Payne v. Tennessee (1991).
      Marshall had been part of the 5-4 majority in the earlier decision, Booth v. Maryland (1987), that found an unacceptable risk of prejudice in allowing surviving family members to air their opinions in the sentencing phase of a capital murder trial. With two new justices four terms later, the Court had specifically asked lawyers to address the question of whether to reconsider the still new precedent.
      Marshall, in his final opinion before he announced his retirement the same day, was especially sharp in criticizing his colleagues for disregarding stare decisis — the legal doctrine that calls for following rather than overturning prior decisions. "Neither the law nor the facts supporting Booth . . . underwent any change in the last four years," Marshall wrote of the new 6-3 decision. "Only the personnel of this Court did."
      The Court confronts a similar situation on Monday [Feb. 26] as a fortified bloc of conservative justices prepare to jettison a 40-year-old precedent important to public employee unions for no good reason except their raw power to do it. Conservative justices with little regard for organized labor are set to deal a body blow to the financing of public sector unions. Their anticipated decision will eliminate public employee unions' ability to require non-union members to pay their "fair share" of the costs of representing them in collective bargaining and other workplace issues.
      The precedent at issue, Abood v. Detroit Board of Education (1977), has rankled anti-union forces for decades despite the protection that the decision bestowed on dissident non-union teachers in the instant case. Led by Justice Samuel A. Alito Jr., the Roberts Court has taken pot shots at the decision in three cases over the past six years and now appears ready to overturn it with Justice Neil Gorsuch expected to use the stolen ninth seat to cast the decisive fifth vote.
      In the first of those decisions, Alito dumped on Abood as "an anomaly" without recognizing that it established for public sector unions the same legal framework that applies to unionized companies in the private sector. Abood dealt with what economists call the "free rider" problem: the natural tendency for someone to avoid paying if possible for some publicly available benefit or service of some sort.
      Federal labor law requires that a union, once certified by a majority of workers in a democratic election, represent and advocate for the interests of all the workers even those who voted against or refuse to join the union. Workers cannot be required to join a union as dues-paying members, but non-union members can be required to pay a so-called agency shop fee to cover the union's costs in representing them along with union members.
      In Abood, a somewhat fractured Court crafted a compromise of sorts by limiting the state laws authorizing agency shop fees for public employee unions to some extent. To avoid a compelled-speech issue, the mandatory fees paid by non-union members could be used only for workplace issues, not for the union's political or lobbying activity. The non-union members could opt out of paying for those activities and claim a partial refund based on the percentage of the union's budget devoted to non-collective bargaining activities.
      A decade later, the Court's decision in Chicago Teachers Union v. Hudson (1986) regularized that limitation by requiring public employee unions to send members and non-members alike a notice about their right to opt out of paying that portion of the fees devoted to non-collective bargaining activities. The procedure entailed some difficult line-drawing to identify the political activities that objecting non-union members could avoid paying for, but overall the Hudson notice system proved to be workable.
      Back in 1991, Chief Justice William H. Rehnquist answered Marshall's dissent on victim-impact statements by stating the obvious that the doctrine of stare decisis "is not an inexorable command." Precedents are not sacrosanct, never to be overruled. If they were, Plessy v. Ferguson would still be on the books and racial segregation still the law of the land. Even so, respect for precedent requires some special justification for overruling a prior decision — justification that Marshall found lacking in the Booth  to Payne sequence on victim impact statements.
      The plaintiffs in the new public sector union case, Janus v. AFSCME, have not carried the burden of showing that Abood is unworkable in the light of four decades of experience or unsound as a matter of legal doctrine. To reiterate: Abood protects objecting non-union teachers, for example, from being forced to pay for teachers' union lobbying or election campaigning.
      Nothing has changed in the past 40 years except the growing strength of anti-union forces who want to use the courts to undercut the laws enacted in nearly half the states to authorize public sector unions for the benefit of public employees and public sector labor-management relations. With a decision likely in June, expect a conservative majority to wrap themselves in a vision of the First Amendment that gives an invented constitutional right to free-riding government workers who take the benefits of union representation without paying for them.

Kennedy "Most Consequential" Justice of Era

      Anthony Kennedy marks the end of his thirtieth year as a Supreme Court justice on Sunday [Feb. 18], currently the fifteenth longest tenure of the Court's 112 members in its 230-year history. Kennedy's precedent-setting or -breaking opinions on issues ranging from abortion, affirmative action, capital punishment, and gay rights to campaign finance and religious liberty represent a monumental legacy that marks him as the most consequential justice of his time on the Court.
      Kennedy may also be remembered as the last Supreme Court justice ever to be confirmed by a unanimous Senate floor vote. Kennedy was confirmed on a 97-0 vote by the same Democratic-majority Senate that sixteen weeks earlier had soundly rejected President Ronald Reagan's first choice for the vacancy, the archconservative federal appeals court judge Robert Bork. The bipartisan acclaim for Kennedy now appears as a long-gone relic of a different era of Supreme Court politics.
      Three decades after Kennedy's confirmation, his approval rating —  if justices were polled just like presidents —  surely would be significantly lower. Many conservatives would vote thumbs down because of his role in preserving the Roe v. Wade abortion rights ruling and in extending constitutional rights to gay men and lesbians. Some liberals might also turn thumbs down by citing Kennedy's pivotal votes in 5-4 decisions to gut campaign finance laws and jeopardize gun safety laws in the name of the Second Amendment.
      The shorthand description of the various justices as liberal or conservative routinely used by Court watchers may amount to an oversimplification, but Kennedy's opinions and votes defy a one-word label. One veteran Kennedy watcher, however, sums him up as a "modest libertarian." Helen Knowles, an associate professor of political science at State University of New York in Oswego and author of the appreciative volume The Tie Goes to Freedom, sees three pillars in Kennedy's judicial philosophy: tolerance of diverse views, treating every individual with dignity, and respecting liberty but insisting liberty be used responsibly.
      Knowles joins this writer in doubting the rampant speculation about Kennedy's possible retirement. "I don't think he's going anywhere soon," says Knowles. As he approaches age 82 in July, his health appears to be good. Thus, his legacy remains a work in progress that Knowles notes will be shaped in part by Kennedy's eventual vote in the gay wedding cake case argued in December. "The case involves two very central parts of his jurisprudence: both gay rights and free speech," she notes.
      Kennedy has not tried to set out an overarching judicial philosophy as two of his longtime colleagues have done: the late justice Antonin Scalia, in his books extolling originalism and textualism, and Stephen Breyer, in his book elaborating on "active liberty" as a lodestar of judicial decision-making. Kennedy is instead as modest as Knowles describes and, unlike Scalia, has never to my knowledge mocked or derided justices or others for disagreeing with his views or opinions.
      As successor to Justice Lewis F. Powell Jr., Kennedy moved into a "swing-vote" position on the Court that he shared with Justice Sandra Day O'Connor for the next 18 years. Kennedy played his pivotal role differently from O'Connor. As a former Arizona legislator, O'Connor was to some extent a finger-in-the-wind justice who seemed to look for politically acceptable compromises on hard issues, such as abortion. Kennedy is made of sterner stuff.
      In general, Kennedy holds his views firmly, with no corner-cutting compromises, but he can also hesitate Hamlet-like with hard decisions. By happenstance, he was with a reporter on the day he joined O'Connor and David H. Souter in the 1992 decision that largely reaffirmed Roe v. Wade. Before taking the bench, he mused out loud about "crossing the Rubicon." 
      As Knowles and others have pointed out, Kennedy is the strongest and most consistent free-speech advocate on the current Court. Thus, according to the leaked accounts, it was Kennedy who pushed for the broad, precedent-overruling decision in Citizens United v. Federal Election Commission (2010)  to free corporate spending in political campaigns instead of the narrower ruling that could have resolved the instant case.
      Kennedy may know his own mind well, but he shows that he can hold seemingly contradictory positions in his mind from case to case. He has voted repeatedly to uphold capital punishment, but he also joined or wrote decisions to bar the death penalty for the intellectually disabled, for juvenile offenders, and in rape cases. He has been a strong vote in recent religious liberty decisions, but he also wrote the 1992 decision that barred school-sponsored prayer at graduation ceremonies.
      Time after time, Kennedy has either written or joined 5-4 decisions, attesting to his pivotal role on an ideologically divided Court. Through 29 terms so far, Kennedy has registered the lowest number of dissenting votes in all but a few. Consciously or not, Kennedy appears to have responded to the recent effort by legal conservatives to push or pull the Court to the right by, if anything, moving somewhat to the left.
      Thus, Kennedy cast pivotal votes in two critically important cases in 2016: his first ever vote to uphold use of race in university admissions in his decision in Fisher v. University of Texas and one of his rare votes to strike down state restrictions on abortion procedures in a decision he assigned to Breyer, Whole Woman's Health v. Hellerstedt. Those decisions underscore that Kennedy decides cases, judge-like, one case at a time, and that he remains the one justice never to be taken for granted.
 

Trump's Judges Pose Danger to LGBT Rights

      The Supreme Court's decision recognizing marriage rights for same-sex couples holds out the promise of legal and social equality for gay and lesbian Americans, but only the promise: not yet the reality. Already, next-generation issues are pending at the high court, in lower federal and state courts, and in federal and state agencies, with same-sex couples still experiencing outright hostility or bureaucratic indifference when claiming rights enjoyed by opposite-sex couples.
      The Supreme Court similarly held out the promise of racial equality in 1954 with its landmark school desegregation decision in Brown v. Board of Education. Six decades later, however, the promise of that decision has yet to be realized, with the Supreme Court now in retreat on the need to diversify racially isolated schools.
      The practicalities of judicial administration required the Warren Court to leave the implementation of the school desegregation decision to lower federal court judges. President Dwight Eisenhower was ambivalent at best about Brown, but fortunately for history's sake he appointed to the federal bench in southern states judges who took their responsibilities seriously to follow the law laid down by the Supreme Court.
      Fast forward to today. With the future of LGBT rights still quite uncertain, President Trump has turned to a number of unreconciled opponents of LGBT rights to fill federal court seats. The justice he appointed to the Supreme Court may harbor no ill will toward LGBT individuals, but Neil Gorsuch has already voted in one significant case against granting the same rights to same-sex couples as enjoyed by opposite-sex couples.
      Gorsuch dissented from the Court's decision in June in Pavan v. Smith to require an Arkansas state agency to list both a biological mother and her wife as parents on their child's birth certificate just as the state would do for the husband in an opposite-sex couple who gave birth through assisted reproduction. The same issue of common-law parentage is now pending in federal court suits filed by gay couples challenging the State Department's refusal to allow a non-biologically related father to transfer his citizenship to a child born abroad.
      Other pending issues are more straightforward. The Supreme Court heard arguments in December to decide whether commercial businesses can refuse to serve LGBT individuals based on moral or religious objections — for example, to same-sex weddings. The justices are also being asked to determine whether the federal civil rights law that prohibits sex discrimination also applies to discrimination on the basis of sexual orientation or gender identity.
      Judges on lower federal courts will play a role in determining some of the future issues and implementing eventual Supreme Court decisions. LGBT advocacy groups warn that many of Trump's judicial nominees have records of outright opposition or indifference to LGBT rights.
      Lambda Legal identified Gorsuch and 15 other Trump nominees as having anti-LGBT records in a detailed analysis last fall. The report noted, for example, that Gorsuch joined an opinion while on the Tenth Circuit to allow the state of Oklahoma to deny hormone treatments to a transgender female inmate.
      Other Trump nominees evinced similar indifference to LGBT rights on the bench. While on the Texas Supreme Court, Don Willett joined an opinion denying benefits to the spouses of gay or lesbian public employees. On the Michigan Supreme Court, Joan Larsen refused to recognize parental rights for a lesbian parent after a marital breakup. Both Willett and Larsen withstood opposition from LGBT and other civil rights groups to win confirmation on mostly party-line votes to federal appeals courts in their circuits.[
      Willett and Larsen are among many Trump nominees with judicial views generally hostile to the courts' role in extending or protecting individual rights. Larsen, for example, criticized the Supreme Court's decision in Lawrence v. Texas to strike down state laws banning gay sex as "revolutionary" because it cited foreign law.
      Some other nominees have been more explicit in opposing LGBT rights. As a board director of the Nebraska Family Alliance, Steven Grasz opposed recognition of same-sex marriages and supported the use of gay conversion therapy. He was confirmed to the federal appeals court for the Eighth Circuit.
      As a member of the Tennessee legislature, Mark Norris sponsored or supported a variety of anti-LGBT bills, including a "don't say gay" bill to prohibit teachers from discussing homosexuality in schools. Norris is awaiting a Senate floor vote on his nomination to the U.S. District Court in Memphis after the Judiciary Committee recommended confirmation on an 11-10 party-line vote.
      One of Trump's anti-LGBT nominees, however, proved too much for the committee to swallow. Jeff Mateer, an assistant in the Texas attorney general's office nominated for a federal district court, withdrew after news coverage of remarks he made while with a religious liberty group describing transgender individuals as "part of Satan's plan."
      As a candidate, Trump sometimes professed support for LGBT rights, but he also sought and relied on support from evangelicals and other social conservatives. As president, Trump has pleased his political base by opposing transgender rights in public schools and supporting anti-LGBT discrimination at the Supreme Court. But long after Trump is gone, the judges he is naming to the federal bench will still be there, slowing if not reversing the movement toward equal rights for LGBT Americans.

On Immigration, Trump Lies, Panders to Base

      President Trump has shown himself in his campaign and in office to be reflexively averse to dealing with the details of policy or legislation, but he appears to have a good grasp of what he wants to do on immigration. Sadly, the president's plans for what he calls immigration reform are based on outright falsehoods about current policy and on menacing appeals to the worst elements of his political base.
      Trump made a pretense of offering a bipartisan compromise to pro-immigration Democrats as part of his State of the Union address [Jan. 29]. He is proposing a path to citizenship not only for the estimated 800,000 "Dreamers" brought to the United States as minors but also for their families: an estimated 1.8 million non-status immigrants in all. Trump combined that carrot, however, with a package of sticks rightly rejected by the other side: sharp cuts in legal immigration and a reckless increase in border enforcement staffing.
      Begin with Trump's two overarching falsehoods on current immigration policy. Trump and his supporters are simply wrong in his attack on so-called "chain migration" to depict current family unification policies as allowing immigrants to sponsor an unlimited number of family members. The proposed remedy is heartless to the max. The White House "framework" on immigration proposes to "promote nuclear family migration" by limiting sponsorships to spouses and minor children: siblings and parents need not apply.
      Trump is also wrong in saying that the current diversity visa lottery system "selects individuals at random to come into the United States without consideration of skills, merit or public safety" (emphasis added). In fact, eligibility for the lottery — with merely 50,000 slots per year —  requires proof of education and employment and a security background check.
      Unsurprisingly, black and Hispanic immigrants would be roughly twice as likely to be affected by the administration's proposals than white immigrants, according to an analysis by economist Michael Clemens,a fellow with the Center for Global Development, Clemens, who is affiliated with the avowedly conservative Hoover Institution, used 2016 figures for immigrants admitted through the lottery to estimate that the changes would reduce the number of black immigrants by 64 percent and the number of Hispanics by 58 percent while the number of white immigrants would be cut by roughly one-third.
      Were there any doubt, the analysis underscores the inherent racism in Trump's proposals. Yet pro-immigration advocates emphasize that seeking to curtail legal immigration is the very opposite of making America "great" again. The foreign-born living in the United States have risen over the past 25 years to reach 13.7 percent in 2015, according to the U.S. Census Bureau, but that percentage is below the historic high in this "nation of immigrants" of 14.8 percent in the 1890s.
      Trump openly appealed in his campaign to the nativist element in the U.S. population with his anti-immigrant rhetoric. With his rhetoric now embodied in legislative proposals, Trump is drawing opposition not only from liberal pro-immigration groups but also from the U.S. Chamber of Commerce and such mainstream conservatives as columnists David Brooks and Michael Gerson.
      Writing on the business lobby's blog in advance of Trump's State of the Union address, Chamber president Tom Donohue called for legalizing the status of the 1 million immigrants already in the country and also for continuing to welcome legal immigration for the economy's sake. "Without qualified workers," Donohue wrote, "American businesses and the U.S. economy can’t grow."
      David Brooks added his voice to the pro-immigration argument the same day in his scheduled column in The New York Times. "[T]he evidence for restricting immigration . . . is pathetically weak," Brooks said. Far from hurting the country, immigrants are providing the "antidote" to an overall loss of "dynamism," socially and economically.
      Gerson, a speechwriter alumnus of the compassionate conservatism of the George W. Bush White House, similarly discounted the factual evidence for Trump's arguments "as uniformly exaggerated or wrong" in a critique of the State of the Union published in The Washington Post on Friday [Feb. 2]. "There is little evidence that migrants take jobs from middle-class Americans," Gerson wrote. He debunks the fear of immigrant crime as well. "There is no evidence that immigrants have higher rates of crime," he writes. "The opposite is true."
      Trump is once again factually wrong to claim an increase in illegal border crossings when the numbers appear to be falling. Yet to combat the non-existent menace, Trump wants a $25 billion trust fund for his "beautiful" wall and a 50 percent increase in border enforcement resources for Immigration and Customs Enforcement (ICE). Environmental experts view the supposed wall as a threat to wildlife and endangered species. Immigration advocates warn of the risks of adding so many ICE agents without effective safeguards against corruption and abuse.
      Anti-immigrant hysteria has been part of American history time and time again through the years, but never before has a U.S. president made it such a central part of his campaign or his presidency. As with some of his other policies, the only way for Trump to make America great is to change his policies and his rhetoric. As president, he should be trying to bring Americans together instead of continuing to divide the country by race, ethnicity, and national origin.