Linda Greenhouse revisits a prime example of the 1% Court in action

In an excellent column this week, Linda Greenhouse, former Supreme Court reporter for The New York Times revisits a case, Knox v. Service Employees International Union, which Alliance for Justice has been following closely, but much of the media have ignored.

Justice Samuel Alito

Knox illustrates both how the current majority goes out of its way to favor big business, a theme of our most recent First Monday documentary, Unequal Justice, and also the extreme judicial activism of the court’s extreme right – another issue we’ve followed closely.

Greenhouse also cites Prof. Benjamin Sachs who, on this Blog and elsewhere, has argued that, in a post-Citizens United world, the majority’s view gives unions notably less “free speech” than corporations.

As Greenhouse points out, the issue in Knox was narrow and seemingly arcane—whether workers who were not members of the union had been given adequate opportunity to “opt out” of one particular “special assessment” to be used for some political activity.

But the right-wing majority, led by Justice Samuel Alito, seized upon the opportunity to go far beyond this narrow issue.  They questioned whether unions have a right to require non-members to affirmatively “opt out” of any use of their dues for political activity.  They even questioned whether unions have a right to charge dues for non-members at all, even though those non-members, of course, receive all the benefits of collective bargaining agreements.

Greenhouse calls it “flagrant activism.”  She writes: 

In his opinion, Justice Alito denied going beyond the confines of the question the parties brought to the court, but Justice Sonia Sotomayor shredded his defensive assertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor said the case, as presented, provided no occasion for the majority’s attack on the opt-out rule, let alone its expressions of skepticism about the constitutionality of the agency shop.  …  Justice Sotomayor said: “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Justice Breyer, joined in his dissenting opinion by Justice Kagan, noted that “the debate about public unions’ collective-bargaining rights is currently intense.” He added, “There is no good reason for the court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”

The myth of the left-leaning Supreme Court

We all know the mythology: liberal “activist judges” supposedly spent decades pushing the U.S. Supreme court to the left.  But there is graphic evidence to the contrary – specifically, the graphic above, which we first saw while watching AFJ President Nan Aron on Up with Chris Hayes last month.

It’s based on the work of Professor Andrew Martin of Washington University School of Law in St. Louis and Professor Kevin Quinn of the University of California at Berkeley School of Law. They’ve measured the ideological slant of the Supreme Court all the way back to 1935. The graphic makes clear that for almost the entire period from then to now, any “activism” on the Supreme Court has been conservative activism.(And as New Yorker writer and CNN analyst Jeffrey Toobin makes clear in his latest book, The Oath: The Obama White House and the Supreme Court, the rightward drift of the court goes back much further than 1935.)

It’s the very bottom of the graphic that is most disturbing. It shows that the sharpest swing to the extreme right is happening right now, under the court led by Chief Justice John Roberts.

As for “activism,” in case after case, it’s the far right on the court that has overturned precedent and rushed to rewrite law.The notorious Citizens United decision (discussed in AFJ’s new documentary Unqeual Justice) is a case in point. As Toobin notes, that case started out as a challenge to one narrow piece of the McCain-Feingold campaign finance law. But by a vote of 5 to 4 the majority took advantage of the opportunity to gut the entire law, reversing a century of precedent and starting a process that led to a flood of corporate money into campaigns.

The Martin-Quinn findings are still more evidence that, of all the decisions a president can make, his choice of judges can have the greatest impact.