Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Constitutional Political Economy When the Court is to the Right of the Country
By Joseph Fishkin & William E. Forbath
Most Americans, even well-informed Americans, understand the fight over a new Supreme Court justice largely in terms of certain high-salience issues in constitutional politics such as abortion, affirmative action, the death penalty, or perhaps the religious rights of a conservative Christian to refuse to serve a gay couple. We seem a great distance, in other words, from 1936, when President Roosevelt ran for re-election against the “constitutional-economic philosophy” of the “Nine Old Men” who had recently struck down key New Deal statutes. In 1936, everyone, whatever their views, could see that the constitutional fight ahead had to do with fundamental questions about how the nation’s economy would be organized, and for whose benefit. In Jones & Laughlin in 1937, the Court famously retreated, upholding the National Labor Relations Act (NLRA) (the “Wagner Act”) against a challenge that perfectly encapsulated one side of that debate—a fiercely anti-union and anti-redistributive vision of the demands the constitution places on how we structure economic life.
Those fundamental questions of constitutional political economy were never settled. After 1954, Brown and debates about school busing became the main axis around which our constitutional politics turned; liberals took to defending the Warren Court while conservatives found success running against it; and this pattern has basically continued ever since, despite changes in the mix of salient issues and despite the fact that conservatives, not liberals, have controlled the Court since the mid-1970s. Since that time, American political economy has changed. Inequality has skyrocketed; unions have been ravaged; workers’ share of national income has declined; the cost of health care, higher education, and for that matter, political campaigns have gone through the roof in ways that make access to any of them perilous and unequal. Groups favoring an ever more hierarchical and anti-democratic vision of American political economy, from the Chamber of Commerce to the Koch brothers’ network, have found enormous success not only in the Republican party but also in the courts. In court, instead of building their political-economic vision through the old constitutional claims of property and contract rights and substantive due process of the Lochner era, these groups today use different doctrinal tools, of which perhaps the most powerful is the newly “weaponiz[ed]” First Amendment.* The objectives, and the political-economic stakes, remain the same.
The Roberts-Kennedy Court, as perhaps the first years of the Roberts Court may eventually be known, began to make interventions in our constitutional political economy forceful enough that Americans started to take notice. Citizens United, in particular, drew a powerful public response; it was the first case in a long time that vividly illustrated to large numbers of Americans that the Supreme Court is in the business of deciding profound questions of political economy. When faced with Obamacare, the single largest egalitarian intervention in American economic life in a generation, Chief Justice Roberts stepped back from the brink, issuing some wild Commerce Clause dicta but ultimately upholding the law as an exercise of Congressional power to tax.
Well, buckle your seat belts. Justice Kennedy’s retirement announcement yesterday means that we are on the cusp of a bolder Roberts Court, one poised to push much harder for a neo-Lochnerite individualistic vision of constitutional political economy. The evidence is already before us. Indeed we need look no further than the case decided yesterday, Janus v. AFSCME, the Court’s latest effort to nationalize some states’ anti-union policies that are aimed, undisguisedly, at breaking some of the last bulwarks of workers’ political power. (More about the case below.)
President Trump responded to Janus with predictable bluntness: “Big loss for the coffers of the Democrats!” In this case, his lack of interest in legal doctrine actually brought him fairly close to the core of what the case was about. The remarkable thing is how close the majority opinion, by Justice Alito, itself comes to revealing that this decision’s purpose and effect are essentially about economic and political power. If Justice Kennedy’s successor is anyone from President Trump’s list (outsourced to the Federalist Society) of potential nominees, it will be time for everyone who disagrees with the political-economic course the Court is charting to begin to reorient our constitutional politics. The next decades will be a period of progressive constitutional politics outside, and largely in opposition to, a hostile Court.
To understand how we got to Janus v. AFSCME, it helps to take a step backward. The Wagner Act was, as Jack Balkin would use the term, a constitutional construction. It laid out—and the early Labor Board it created defended—a conception of labor’s basic freedoms that trumped private employers’ efforts to suppress unions, and pre-empted state laws limiting secondary strikes and boycotts, with the explicit purpose of rectifying asymmetries of bargaining power and promoting industrial democracy across the economic landscape. Even the Court began to recognize these collective freedoms as “fundamental rights” and to condemn state laws infringing them.
But almost immediately this constitutional construction also began to take heavy fire from opponents who hewed to the older, anti-union, individualistic political-economic vision. Business never made peace with the constitutional order embodied in the Wagner Act, least of all its startling new conception of labor’s freedoms. Soon after Jones and Laughlin, Cecil B. DeMille, the famous filmmaker and founder of Paramount Pictures, joined forces with veteran anti-union, corporate attorneys and employers’ associations and launched the “right to work” movement. It made enormous progress with the Taft-Hartley Act, which reined in labor in various respects, such as by outlawing secondary boycotts and abolishing the closed shop (where employers agree to make union membership a condition of employment). Various key questions the Wagner Act had regulated on a national basis became, after Taft-Hartley, questions for the states.
Taft-Hartley allowed collective agreements that made dues payments, as opposed to union membership, a requirement of employment. But the Act also provided for states to enact even harsher “right to work” laws, forbidding unions from negotiating for such mandatory dues payments or so-called agency fees. Such state laws would no longer would violate or be preempted by national labor law. Several states, mostly in the South and Southwest, took up the invitation. And there things stood until 1977, when the Court decided Abood. That case cut back on unions’ ability to negotiate for agency fees, insofar as a portion of those fees went to union’s “political” activities, like supporting political parties and candidates. To that extent, the Abood Court concluded, such fees were a species of compelled speech that ran afoul of the First Amendment. Unions could continue to collect only the portion of agency fees that paid an individual’s share of the costs of collective bargaining and contract administration. That was all that was left standing—but it did important work overcoming the obvious free-rider problem that arises if non-members can get everything the union bargains for for free.
Abood, in turn, was cut down yesterday by a fully weaponized First Amendment wielded by Justice Alito in Janus. The Court decided to impose the red-state/“right to work” rule on this issue (no agency fees allowed) on the entire nation, for public-sector jobs.
This involved some bold moves. For one thing, the Court had to overrule Abood—a holding that undergirds thousands of current union contracts and a great deal of state law. The Court’s extensive discussion of stare decisis provides a kind of dark preview of where the post-Kennedy Court’s First Amendment jurisprudence might go in the future. Citizens United functions not only as a precedent in Janus, but as a kind of meta-precedent: since Citizens United also overruled a prior case that rested on a more egalitarian constitutional political economy, Justice Alito in Janus uses Citizens United as a kind of blueprint for how you use the First Amendment to reverse old Court doctrine that is insufficiently libertarian in its political-economic orientation.
In the most interesting and revealing section of his majority opinion, Justice Alito offers a frank assessment of the political economy of public-sector unions. “Th[e] ascendance of public-sector unions has been marked by a parallel increase in public spending,” he writes, offering some figures, sourced not to the briefs but to the Statistical Abstract of the United States, showing that state and local government expenditures more than doubled in real terms from 1970 to 2014. Citing amici, he notes that “Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages” and in general “the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role” in the increase. He concludes: “These developments, and the political debate over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood did not fully appreciate.”
A political valence, indeed! Yes, public sector collective bargaining has a political valence as well as an economic one, although this was also true in 1977. One might ask how Justice Alito shoehorns these observations about the possibly undesirable aspects of union representation in the public sector into an opinion that is ostensibly about the First Amendment. The doctrinal answer is that if you’re going to overrule precedent, it helps bolster your case to show that the old doctrine was unworkable, or that unanticipated developments have intervened between the old case and the new. However the real answer, as revealed by the army of right-wing amici in the case, a couple of whom Alito cites in this very paragraph, is that the “political valence” of collective bargaining is exactly why the Janus case exists in the first place.
Justice Alito’s characterization of collective bargaining as inherently political is rich with historical irony. In the early years of the Wagner Act, it was the unions who pointed out that collective bargaining is not just private but also political, and the Supreme Court agreed. Wages, labor standards and union efforts to boost them were “not matters of mere local or private concern,” the Court noted in Thornhill v. Alabama, but part and parcel of how workers were using “the processes of popular government . . . to shape the destiny of modern industrial society.” Later, the Court retreated from this position and began to view collective bargaining and union actions as private and economic, not public and political; that was the justification for upholding Taft-Hartley’s various limitations on union activity such as boycotts and picketing against First Amendment challenge. Now, it is Justice Alito arguing that collective bargaining is political, because he assumes that means the First Amendment cuts just the opposite way.
Justice Alito characterizes the purpose of the old legal settlement, upended yesterday, in narrow terms: the point of agency fees was to achieve “labor peace” by preventing multiple unions from competing within one establishment. Justice Kagan, in dissent, offers a clearer view of the purpose: “agency fees are often needed to ensure . . . stable funding” which may be the prerequisite for union survival. Because these rules had (until now) been left up to the states, some states had gone with the agency fee model (generally, blue states) while other states had prohibited it (generally, red states). This leaves Justice Kagan in the position of arguing that states have a strong interest in ensuring that they have a stable union partner to bargain with, an interest the Court yesterday undermined. Other states, she notes, “would prefer that representative to be poorly funded—to serve more as a front than an effectual bargaining partner.”
It’s a fair point. But in arguing it that way, Justice Kagan leaves the broadest and most forceful arguments off the table. States might legitimately argue that it is within their power—indeed, they might argue that they are constitutionally obligated—to build a political economy that gives economic and political voice to the many and not just the few. Public-sector unions will never represent most workers, but they represent quite a lot of middle-class workers such as teachers and police officers, and they are now among the strongest unions left standing; they can and do help other unions hold on, and they help sustain the possibility of a political coalition that actually serves the economic interests of most Americans.
Building such a political coalition is not easy under any circumstances. It will be particularly challenging to do it in the face of a hostile Court. For all that Justice Kennedy did as a swing Justice on some of the highest-profile issues of his day to steer the country in a more moderate direction, including on gay rights, one of the most significant elements of his legacy could turn out to be the timing of his retirement. That timing could yield not only a Supreme Court that will eviscerate abortion rights, and do other damage to the high-profile issues with which this post began, but also a court that will, for the first time since 1937, contain a clear majority committed to imposing a neo-Lochnerite vision of constitutional political economy on the United States. If that happens, then generations of Americans, acting outside the courts, will need to reinvent some old ideas about the Constitution and political economy, and to reorient their constitutional politics in opposition to a hostile Court.
* This word comes from Justice Kagan's dissent in Janus. She writes that the majority is "weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy." She concludes: "The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance..."