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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.


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