A Novel Constitutional Principle

I have no idea who should win the Supreme Court case about mandatory dues for teachers’ unions. But I am pretty sure that Dana Milbank has demonstrated the way not to think about it. He barely mentions the plaintiffs’ argument, and never grapples with it. He assumes that they, and the justices sympathetic to them, just want to stick it to unions because they want right-wing billionaires to get their way in politics more often: that they are, that is, as uninterested in the legal merits of the case as he himself appears to be. We need strong public-sector unions to fight the right-wing billionaires, so the justices shouldn’t make legal decisions that harm the unions’ political clout: QED.

But the column is actually worse than that, since the unions and their supporters are claiming that dissenters are being forced to fund only collective bargaining, not political activity. It’s the plaintiffs who say that they’re being forced to fund politics, because collective bargaining is inherently political. Milbank quotes Dahlia Lithwick, who covered the oral arguments for Slate. Whatever else you think of her article, she at least understands which side is arguing what.

Milbank also approvingly quotes Justice Breyer, who warns against overturning a 1977 precedent about public-sector unions: “[Y]ou start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?” (If you want to take a moment here to indulge a bitter laugh, be my guest.) Other precedents have undermined Abood. But respect for the power of precedent doesn’t really fit with Milbank’s column anyway. Abood says that dissenters have to be able to opt out of paying for politicking with which they disagree. If the justices adopted Milbank’s apparent view–that there’s an unwritten constitutional command to make sure teachers’ unions can play a large role in “campaign finance”–they’d have to overrule Abood.

Update: Some commenters wonder why I say I have ”no idea” who should win the case. One asks if I am saying that only specially-trained lawyers are competent to judge that question. I’m not saying that, and don’t believe it. I am definitely with the plaintiffs on the policy question: I’m for the right to work. I do, however, think that some legal questions require historical research. In this case, what I’d like to know is whether the original understanding of the First Amendment barred this kind of compelled speech. I have neither done that research nor read a report from anyone who has.