The Supreme Court: Kennedy Retires, Public Sector Unions & The Travel Order

Kennedy Retires.  Public Sector Unions given the Wisconsin treatment.  La Judicial Resistance smacked down.

A big day in the news for the Supreme Court.  The most important news is that Justice Anthony Kennedy is retiring.  The Supreme Court is losing not merely its best gay romance novelist, but its swing vote.  It is a measure of how far we have moved away from government by the Constitution that the single most important political decision now facing the country is who will fill Kennedy’s seat?  Add in to the mix Sen. Jeff Flake, who has promised to tie up all judicial nominations until the class of 2018 is seated.   This will very shortly get very interesting.

In other news, the Supreme Court has handed down two important decisions, neither of which are surprises.  In Janus v. American Federation of State, County, and Municipal Employees, the SCT held today that public sector unions may no longer collect compulsory fees for representing public sector employees who choose not to be a part of the union — the so called “agency fee.”  As public sector unions are the single biggest money laundering operation run by and for the Democrat Party, it is a hugely important decision.  I think it rightly decided.  The dissent, however, written by Justice Kagan, may well qualify as the most tin eared piece of fluff ever written.

In Trump v. Hawaii, issued yesterday, the Court held that President Trump’s orders as regards travel from several countries were lawful.  The Ninth Circuit and the lower courts had attempted what amounted to a judicial coup to hamstring Trump.  That one was never in doubt, with the only surprise being that it was a 5-4 decision, the “wise Latina” authoring a political pamphlet disguised as a legal dissent.


Private sector unions date back to the bad old days of the Industrial Revolution.  Marx referred to them as the “building blocks” of the worker’s revolution to come.  But times change, the legitimate demands of workers were met,  “and the realities of the marketplace have seen unions go from their hey day in 1960, when more than 37% of all private sector employees belonged to a union, to today where unions represent only 7.6% of the private work force.”

Not so of course for public sector unions.  As I’ve previously written:

Unions in the public sector are a growth industry with 39% of all state and local public employees belonging to unions. What can possibly justify public sector unions in 2010? This is not the era of sweatshops and 80 hour work weeks. And indeed, today we see public sector union employees earning significantly more than their private sector counterparts.

Public unions are particularly insidious. They are not subject to market forces and they have every reason to seek growth of government. . . .

And it is the government – public sector union nexus that has been so toxic for our nation.  Up until today, mandatory public sector unions have been a money laundering operation for Democrats at all levels of government and have long been the economic foundation of the party.  That will continue, but after today, it will be circumscribed.

Old law, Abood decided in 1977, allowed workers to opt out of a union, but still allowed unions to charge agency fees, ostensibly to cover the cost of union bargaining with the state, but not union political activities,  Janus overturned Abood, finding that the agency justification was without support and that the First Amendment precludes compelled speech, including being forced to contribute to a union conducting political activities with which you disagree.  It is Scott Walker’s changes in Wisconsin writ large.

Kudo’s to the union lawyers for trying to raise an originalist argument before the Supreme Court.  Unfortunately, their argument, that when the Founders drafted the First Amendment and the states ratified it, they did not intend public sector employees to have any free speech rights, was found wanting by the Janus Court:

We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.7 Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” . . . and others expressed similar views.

It does my heart good to see originalist arguments, even when made by attorneys who apparently no nothing about our Founding.

I did not find this decision surprising, just long overdue.  No one should be forced by the power of the state to pay a portion of their salary to a third party as a precondition to working in their preferred job.  It smacks of indentured servitude, whether in the public or private sector.

That said, what I did find surprising was some of Justice Kagan’s mind numbing dissent.  At one point, she decries the majority decision because “[p]ublic employee unions will lose a secure source of financial support.”  Under what possible provision of the Constitution is that a concern of the Founders who wrote the document or the citizens of this country? It is solely a concern of the Democrat Party.

Lastly, the decision has Chief Spitting Bull on the warpath.

Trump v. Hawaii

This should have been a 9-0 per curiam decision.  The law at issue gives the President discretion to bar travel from nations he feels pose a risk to this country.  Trump did so by Executive Order on the basis of preliminary work done by the Obama administration.  This was cut and dried.  La Resistance Judicial, the progressive judges mostly in the 9th Circuit, ignored the provisions of the law at issue and went to what were supposedly statements by Trump showing that he held an animus towards Islam, apparently violating the Religious protections of the First Amendment.

We’ll leave aside for the moment my own belief, that Islam has no Constitutional protections as it was not recognized as a religion in this country at the time of our Founding.  The Supreme Court did not address that question.  The majority addressed the fact that the law was clear, Trump had a rational basis for his decision, and that should have been the end of any judicial inquiry.

In essence the dissent argues that Trump’s statements show an animus against Islam and thus, even though the law is clear and Trump’s basis rational for his Executive Order rational, once it has been established that Trump/Hitler hates all Muzzies, then he can take no action against Muslim majority countries.  It would lead to an insane outcome where the President would be hamstrung from taking any action now or in the future against any Muslim country solely on the basis of his prior statements, irrespective of the needs of our nation.  That is a radical — and ludicrous — interpretation of the law that no activist judge would allow to stand — at least beginning the day after Trump leaves office.  It is not a legal argument.  It is a political argument / gambit, and indeed, that is how the wise Latina’s dissent reads.  That three judges joined her in that dissent shows is obscene.

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