- Dahlia Lithwicksenior editor at Slate.com. She is their senior legal correspondent and Supreme Court reporter. Dahlia also hosts the podcast Amicus. Her latest piece is headlined “Why Anthony Kennedy Gave Up.”
Justice Anthony Kennedy’s announcement came as the Supreme Court struck a major blow to organized labor Wednesday. In a 5-4 ruling written by Justice Samuel Alito, the court sided with Mark Janus, a child support specialist who argued that a state law in Illinois allowing unions to charge a fee for collective bargaining violated his First Amendment rights. The ruling nullifies so-called fair-share provisions and will leave public-sector unions deprived of millions of dollars in union dues. Mark Janus was supported by a host of right-wing groups including the Koch brothers’ Americans for Prosperity and ALEC—the American Legislative Exchange Council. We speak to Dahlia Lithwick, senior editor at Slate.com.
AMY GOODMAN: Can you talk about what just took place yesterday, Dahlia Lithwick? And that was the Janus decision. Explain exactly what it means.
DAHLIA LITHWICK: Right. This is a 40-year-old precedent. There was a case that came before the court called Aboud. And what it said is that—it was a member of a public-sector union. He didn’t want to pay what’s called agency fees. Those are the fees that you pay into your union, not to do political work, but simply to do collective bargaining. And the Supreme Court, in a unanimous decision in Aboud, said, “You know what? That’s not compelled speech. That is speech—if you were paying your money in to do political work, that’s compelled speech. That violates the First Amendment. But for agency fees to go to simply collective bargaining, that’s in the best interest of,” what they called, “labor stability.” It was in the best interest of the union. And it solved what’s called the free rider problem, the notion that people would benefit from collective bargaining without paying in.
That was settled precedent. Sam Alito came onto the court a few years ago and started gunning for Aboud and saying, “No, I don’t think that distinction should exist between money paid in for collective bargaining and money paid in for political speech. It’s all a violation of the First Amendment.” The Supreme Court had resisted overruling Aboud outright. Yesterday, in the Janus case, they said, “No, money paid in, even if it’s just for collective bargaining, violates the fundamental First Amendment rights of union members who don’t want to be compelled to speak in that way.”
And it seems so technical, Amy, but the net aggregate effect will literally be to defund public-sector unions. It will be to take millions of dollars out of the coffers of unions. Nobody is going to want to pay in money for agency fees if they don’t have to, nor does it, in fact, seem rational anymore. And what it will mean is eviscerating the power of public-sector unions. And I think if you look at that in tandem with the devastating voting rights cases that came down this year, the two gerrymander cases the court failed to address—the Ohio voter purge, which they’ve blessed, the racial gerrymandering case, that just came down, that they’ve blessed—this is really part of an effort to dismantle the Democratic Party, to dismantle voting. It’s not just about worker protections. It’s partly about worker protections, which the court has been assailing for years. But it’s also part of just taking away the power of Democrats to organize and speak and vote. So it will be, I think, one of the most consequential cases of this term, maybe even more so than the travel ban, in terms of disempowering labor in this country, going forward.
AMY GOODMAN: I mean, and, of course, Kennedy sided—I mean, he sided with the conservative majority on the travel ban. He sided with the conservative majority on Janus. And so, there are key issues where—especially the latest ones, where he was already with the extremely—I don’t know even if you call it conservative—you know, right-wing Supreme Court now.
DAHLIA LITHWICK: Amy, I’ve been citing a study from about 2008 that was done by Richard Posner of the 7th Circuit about who were the most conservative judges that have been on the U.S. Supreme Court since FDR. In the last hundred years, four of them are sitting on the present court, four of the most conservative judges. And Anthony Kennedy was number 10 on that list. So I think it was always a misnomer to believe that he was a centrist or he was a pragmatist, that he was in the middle. He was always a rock-ribbed Republican justice, who, on occasion, in the areas you’ve flagged—for reproductive rights, for gay rights, for affirmative action—sometimes defected.
But I think that progressives liked the idea we had a centrist judge who was in play. But in so many of these issues, he was not in play. He voted in Shelby County to strike down the Voting Rights Act. He voted in Heller to uphold gun rights. So I think that it was a little bit of a fantasy that helped liberals feel that all was not lost. But his voting record this term, in every one of the closely decided 5-4 cases, conservatives versus liberals, he voted with the conservatives this term. And so I think he ended his career, in some way, as he started it: as a staunch Republican who was not moving toward the center. And maybe that’s easier to say goodbye, under those set of facts.
AMY GOODMAN: And, Dahlia, finally, is the Senate confirming a new Supreme Court justice a done deal? I mean, there’s a battle going on right now, right? You have Schumer saying, “How dare you! You wouldn’t confirm Merrick Garland in an election year.” And Mitch McConnell is saying he’s going to move forward, this will be confirmed by the fall. And do people outside of Congress right now have a say in what takes place? I mean, after all, when Trump became the president and both houses of Congress were Republican, it was believed Obamacare was over then, and it never actually happened. It was gutted to a certain extent, but it didn’t ultimately happen the way they said it would.
DAHLIA LITHWICK: This is the exact inverse of what we saw happen after Antonin Scalia died in February of 2015, which—2016, sorry, which is that it was not a question of law or norms, it was a question of power. Mitch McConnell, Paul Ryan said, “We are simply not going to let anyone sit in this seat, however long it takes.” By the time the November election rolled around, people like John McCain and Ted Cruz were running on the promise that they would hold that seat open for eight years, if they could. As long as they controlled the Senate, no one was going to sit in that seat, unless a Republican won the election. This is the flip of that.
Now we have a situation where, of course, it’s complete rank hypocrisy to say, “Oh, we can of course appoint someone right before an election, because we’re Republicans.” But understand this is about power and the shattering of norms and the violation of, you know, centuries of Senate precedent. But is there anything to stop them? Unless people are really determined to call their senators and say, “No, this can’t happen,” then this is the power—
AMY GOODMAN: And if Republicans like—
DAHLIA LITHWICK: —they have arrogated to themselves.
AMY GOODMAN: If Republicans like Murkowski, like Collins, who consider themselves pro-choice Republicans, side with the Democrats and do vote, but vote against?
DAHLIA LITHWICK: If the Republicans who have strongly come out and said, “I am pro-choice,” are tagged with the possibility that they are going to seat a 45- or 46-year-old justice who will overturn Roe v. Wade, that may be an issue that will really force them to reckon with what they’re about to do. But I have to say, counting on Republicans in the Senate to vote against Trump judges, especially judges on this list who are more or less mainstream judges who just plan to do away with abortion rights, I don’t know that I would hitch my star to that wagon. But something’s got to change. Someone’s going to have to—someone’s going to have to take this seriously, because I don’t think progressives took it seriously in 2016 when Merrick Garland was being denied a vote.
AMY GOODMAN: Well, I want to thank you very much, Dahlia Lithwick, a senior editor at Slate.com, senior legal correspondent, Supreme Court reporter. Dahlia also hosts the podcast Amicus. Her latest piece, we will link to, it’s headlined “Why Anthony Kennedy Gave Up.”
When we come back, we’ll speak with an immigration lawyer based right here in Brownsville, Texas, on the border, who’s representing families who have been separated by the Trump administration’s “zero tolerance” policy. Stay with us.
AMY GOODMAN: “If I Was President” by Las Cafeteras, performing in Democracy Now!’s studios.