Thread by @fawfulfan

One of the only big opinions left for #SCOTUS to issue is #Janus, where plaintiffs seek to ban security fees for all public unions.

Unions are widely expected to lose. But pay close attention to HOW they lose. The reasoning the Court uses matters a lot.

Let me explain.

The prior case law on this issue is Abood v. Detroit Board of Education. In that ruling, #SCOTUS said security fees are not compelled speech — as long as they don't fund political activity, and unions keep a firewall between bargaining and political campaigning.

In other words, #SCOTUS said if a union is campaigning for a political candidate, that's compelled speech, and workers not in the union can't be made to pay fees for that purpose — BUT if they're using the money to bargain contracts for workers, that's not speech and is allowed.

Flash forward to this case. In #Janus, the plaintiffs argue that, contrary to the ruling in Abood, even just being made to pay security agreements that do *not* fund political causes is compelled speech, and therefore the entire public sector should be made right to work.

In theory that is terrible news for public-sector unions, which are by far the biggest chunk of unionized workers in America and, like all unions, by law bargain for fair wages, benefits, and working conditions for their whole industry, even for workers who are not members.

But as I said, even if we accept as a done deal that #SCOTUS is going to rule against unions, the reasoning they use matters a lot.

Are they just going to invalidate these fees, or are they going to invalidate the entire legal firewall between bargaining and political activity?

Or put another way: is #SCOTUS going to rule that these security fees intended for collective bargaining are inseparable from funds that go to support political speech? Or are the going to rule that collective bargaining *itself* is free speech?

If the latter happened, THAT would be a Pandora's Box.

Decades of conservative businesses and politicians have restricted union activity on the legal premise there is *not* a First Amendment right to bargain. If there suddenly is, all those laws could then face new challenges.

For instance, if collective bargaining is speech, much of the Taft-Hartley Act's prohibitions on general and solidarity strikes, Scott Walker's Act 10, and tons of state and municipal lobbying laws would probably be unconstitutional. portside.org/2018-01-13/uni…

In fact, unions already know that this could be a potential unintended consequence of #Janus that could actually benefit them.

Multiple unions are ready to go with new federal lawsuits striking down bargaining regulations on free-speech grounds. theintercept.com/2018/02/25/con…

The more I think about it, the more convinced I am that the conservative justices (and Gorsuch the squatter) will make an effort to avoid ruling against unions on broad grounds like the plaintiffs are asking for. For that reason.

They'll try something crafty.

I think every justice right of Kennedy, at least, will want to find a legal doctrine that both rules public sector fees impermissible AND somehow maintains the Abood status quo that collective bargaining isn't free speech.

The question is, can they? And if so, what will it be?

It's worth noting that NIFLA v. Becerra, which was issued today, posed a similar dilemma for the conservatives: how to strike down crisis pregnancy center disclosure laws without also creating precedent to challenge right-wing "informed consent" regulations on abortion doctors?

Clarence Thomas' answer was essentially just to bullshit his way through. He basically decreed, informed consent laws don't compel speech but CPC posting laws do, because I say so.

Who knows? Maybe the Court's ruling in #Janus will have similar intellectual shallowness.

I guess my point is to say that even when right-wing judicial activists have the numbers to impose their will in the courts, as now, they still have to grapple with tough questions that require them to cover their bases.

Let's see how well they do it this time. #SCOTUS