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Happy Independence Day From the Supreme Court: Unions and Women Lose, Koch Brothers Win

Posted on Jun 30, 2014

AP/Pablo Martinez Monsivais

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As you crack open a cold one or launch a pyrotechnic skyward to commemorate Independence Day, I invite you to reflect for a moment on the work accomplished by our not-so independent Supreme Court under the leadership of Chief Justice John Roberts on Monday, the final sitting of the tribunal’s October 2013 term.

After a brief sojourn to the political left that culminated in last week’s decision upholding the privacy rights of cellphone owners, the court returned to what it does best in its last session, making a radical U-turn in the opposite direction. In a pair of bitterly contested 5-4 decisions written by Justice Samuel Alito—Harris v. Quinn and the consolidated appeals in Burwell v. Hobby Lobby—the panel’s five-member conservative majority wielded their extraordinary powers not only to slam public-sector unions and restrict the contraception mandate of the Affordable Care Act, but to enlarge the doctrine of corporate personhood, declaring for the first time that for-profit, closely held corporations have rights to the free exercise of religion.

Sadly, despite their razor-thin margins, both decisions were inevitable, given the court’s ideological composition and the dominant recent trends in constitutional law. And while the decisions could have been even worse from a progressive standpoint, the cases have handed long-sought political victories to some of the most extreme elements of the American right—the John Birch Society, tea party groups, think tanks like the Heritage Foundation and the Cato Institute, Christian fundamentalists, and, especially, the shadowy network of behind-the-scenes political manipulators and financiers led by activist billionaire brothers Charles and David Koch.

Let’s take a closer look at the spoils:


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Harris v. Quinn

Argued before the Supreme Court in January, Harris was filed by the National Right to Work Legal Defense Foundation, the legal arm of the National Right to Work Committee, on behalf of a group of Illinois nonunion home-care personal assistants who object to paying “fair share” fees to the Service Employees International Union to cover the costs SEIU incurs by serving as the exclusive representative for those employed under the Illinois Home Services Program. Fair-share fees—which were approved by the court for public-sector unions in 1977 in the case of Abood v. Detroit Board of Education—are paid in lieu of formal dues by employees who receive the benefits of collective bargaining but choose not to become union members themselves.

Fair-share fees cannot be used to finance a union’s political spending, but they are a significant source of overall union revenue. In California, for example, about 29 percent of SEIU members employed by the state are fair-share payers. In the 24 states that have enacted “right to work” laws, nonunion workers cannot be required to make any fair-share payments.

Alito’s majority ruling held that because personal assistants work in people’s homes (often tending to the needs of ill and disabled relatives), they are only “partial public employees,” and as such they are not subject to Abood. Thus, they cannot be compelled to pay any fees to the SEIU, even though they profit from the wage increases the union negotiates for them with the state.

Alito could have ended his analysis right there, sparing public-sector unions further damage, but he didn’t. While the majority stopped short of explicitly overruling Abood, Alito invoked the now-familiar meme—which he previewed in another SEIU case two years ago—that requiring nonunion public employees to pay fair-share fees amounts to compelled speech in violation of the First Amendment as the fees help sustain unions the workers don’t want to join.

Although anti-union crusaders didn’t get 100 percent of what they wanted from the Supreme Court this time, their victory nonetheless moves us one big step closer to the day when the high court could rule that the entire public sector should be transformed into a uniform right-to-work regime. That, precisely, has been the goal of the National Right to Work Committee since it was formed in 1955 by a gathering of hard-core conservatives, anti-communist zealots and Christian fundamentalists.

The committee’s first president was former New Jersey Congressman Fred Hartley, co-sponsor of the 1947 Taft-Hartley Act that authorized states to adopt right-to-work laws. Many of the committee’s early leaders were also founders of the John Birch Society, including Fred Koch, the father of Charles and David.

Over the decades, the committee’s Bircher ties may have waned, but they have not disappeared. Reed Larson, a once-prominent member of the society, still sits on the committee’s board, and both the committee and the legal defense foundation are supported by donations from the right-wing Koch-aligned oligarchy. As reported by The Progressive magazine, in 2012 “the Kochs’ Freedom Partners group funneled $1 million to the National Right to Work Committee, while the Charles G. Koch Charitable Foundation gave a $15,000 grant to the [defense foundation], which has also received significant funding from the Koch-connected DonorsTrust and Donors Capital Fund.”

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