Skip to main content

Nearing the end of a discussion of the Supreme Court's term

Image result for collective bargaining process

We move on now to the headline constitutional issues: the one-person one-vote rule; separation of powers; coerced speech in the labor union context.

Last year at this time, I mentioned that the SCOTUS had agreed to hear Evenwel v. Abbott. This case gave the court a chance to clarify the meaning of "one person, one vote," where appellants asked it to reconstrue that as "one qualified potential voter, one vote."

SCOTUS' answer: the appellant loses. The states may divide themselves into congressional districts on the basis of total population without inquiries into eligibility.  They get to choose. The decision left open the possibility that some state may decide to re-work its district lines according to the number of eligible voters in each. If any state does so and that practice is challenged, only then will we get a more definitive word, I gather.

This decision was unanimous. Thomas and Alito wrote concurring opinions. Thomas joined in Alito's concurrence, but not vice versa. This left Ginsburg writing for the court, joined by CJ Roberts, Kennedy, Breyer, Sotomayor, and Kagan.

Let's pass on to FRIEDRICHS v. CTA. This was a free speech challenge to collective bargaining in the public sector, and it is the justification for the bit of clip art I've included above.

As background: in 1977 the Court decided Abood v. Detroit Bd of Ed. It held that "agency shop clauses" for public employees can be valid, but that their scope is limited, on first amendment grounds. An agency shop is one in which every employee in a particular context (every teacher in Detroit in that case) will be represented by a union in the collective bargaining context, inclusive of employees who decline to be union members. Thus, every employee may be charged a fee for the services of that union in bargaining with the Board of Education or other employer. Such arrangements are generally thought to be necessary in order to prevent a free rider effect from undermining the ability of unions to function at all.

BUT ... the court in Abood said,  the fee that is charged non-union members of the employee group may not include payment for "ideological causes," such as support of candidates for federal or state office. It may only include payment for those activities of a union that actually make it an agent of the workers in the bargaining process, such as obtaining the services of expert negotiators, ancillary economists, lawyers, etc, and the overhead costs of running an operation that can do that.

Plaintiffs in the new decision, teachers in California who are emphatically not members of the California Teachers Association, sought to have Abood overturned.  They maintained that the distinction is untenable, that collective bargaining as an activity, and such ancillary matters as strike decisions, are inherently political, and thus that compelling plaintiffs to contribute to the CTA was compelling them to speak in favor of contested political positions just as offensively as if they were being forced to contribute to the political campaign of a candidate they detest.

If Justice Scalia had lived a little longer, the plaintiffs would have won and agency fees in public employment would have been consigned to history. But in fact he had shuffled off this mortal coil and joined the choir invisible. The court split 4-4 on the facts of this case, leaving intact the appeals court decision, which itself had simply recognized and applied the Abood rule. If the Senate confirms Merrick Garland, or if the country votes for Hillary Clinton, agency fees are safe.

Finally, for today, separation of powers. This session brought us the BANK MARKAZI case: re the Iranian sanctions. Argued in January. Plaintiffs were the families of victims of state-sponsored terrorism, asking the Supreme Court to help them enforce default judgments that had obtained against Iran, by distributing to them the $1.75 billion in assets Bank Markazi has in the United States. Here's a discussion of the arguments.

In April, the high court upheld the courts below and the Act of Congress on which the plaintiffs relied. Assets belonging to the central bank of Iran will be seized and distributed among the victims of various acts of terrorism sponsored by the govt of that country. This is something of a blow to the notion of an independent judiciary, the legislature is effectively ordering courts to make the politically favored finding.

Tomorrow, I'll wrap up this year's discussion with four decisions that bear directly on the idea of sovereignty, the idea that has stood behind the development of the system of nation states that now rules the world.


Post a Comment

Popular posts from this blog

England as a Raft?

In a lecture delivered in 1880, William James asked rhetorically, "Would England ... be the drifting raft she is now in European affairs if a Frederic the Great had inherited her throne instead of a Victoria, and if Messrs Bentham, Mill, Cobden, and Bright had all been born in Prussia?"

Beneath that, in a collection of such lectures later published under James' direction, was placed the footnote, "The reader will remember when this was written."

The suggestion of the bit about Bentham, Mill, etc. is that the utilitarians as a school helped render England ineffective as a European power, a drifting raft.

The footnote was added in 1897. So either James is suggesting that the baleful influence of Bentham, Mill etc wore off in the meantime or that he had over-estimated it.

Let's unpack this a bit.  What was happening in the period before 1880 that made England seem a drifting raft in European affairs, to a friendly though foreign observer (to the older brother…

Cancer Breakthrough

Hopeful news in recent days about an old and dear desideratum: a cure for cancer. Or at least for a cancer, and a nasty one at that.

The news comes about because investors in GlaxoSmithKline are greedy for profits, and has already inspired a bit of deregulation to boot. 

The FDA has paved the road for a speedy review of a new BCMA drug for multiple myeloma, essentially cancer of the bone marrow. This means that the US govt has removed some of the hurdles that would otherwise (by decision of the same govt) face a company trying to proceed with these trials expeditiously. 

This has been done because the Phase I clinical trial results have been very promising. The report I've seen indicates that details of these results will be shared with the world on Dec. 11 at the annual meeting of the American Society of Hematology. 

The European Medicines Agency has also given priority treatment to the drug in question. 

GSK's website identifies the drug at issue as "GSK2857916," althou…

Francesco Orsi

I thought briefly that I had found a contemporary philosopher whose views on ethics and meta-ethics checked all four key boxes. An ally all down the line.

The four, as regular readers of this blog may remember, are: cognitivism, intuitionism, consequentialism, pluralism. These represent the views that, respectively: some ethical judgments constitute knowledge; one important source for this knowledge consists of quasi-sensory non-inferential primary recognitions ("intuitions"); the right is logically dependent upon the good; and there exists an irreducible plurality of good.

Francesco Orsi seemed to believe all of these propositions. Here's his website and a link to one relevant paper:

What was better: Orsi is a young man. Born in 1980. A damned child! Has no memories of the age of disco!

So I emailed him asking if I was right that he believed all of those things. His answer: three out of …