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Policy

The Supreme Court has an enormous influence on economic policy though this association is not commonly made.  For example, the rights and well-being of the working and middle classes can hinge on the opportunity to unionize.  This right suffered a blow in a 2018 Supreme Court case, Janus v AFSCME (American Federation of State, County, and Municipal Employees).  The so-called “right to work,” was upheld by the court in a 5 to 4 decision restricting unions from the collecting “fair share dues.  Prior to the decision, a union could take a “fair share” of the dues from the employee, without their consent, to cover the cost of collective bargaining.  This ruling applies to persons who are in a collective bargaining unit but have not joined the union, since they benefit from the union contract.  They can be applied only to collective bargaining.

In a 5 to 4 decision in June 2018, the court negated the fair share mandate saying that collecting fees from non-consenting employees violated the First Amendment rights guaranteed by the Constitution.  Prior to that decision twenty two states had fair share provisions and 28 were “right to work” states barring collection of fair share monies.  The decision voided the fair share mandates.  The dissenting opinion, written by Elena Kagan, cited protections in the 1977 ruling, Abood v the Detroit Board of Education, which stipulated that fair share dues could only be utilized for collective bargaining which benefited all employees.  She asserted that the  ruling allowed the judiciary to intervene in economic and regulatory policy while weakening the unions.

With the current court poised to get another Trump appointment, the 6-3 conservative majority it would represent can do a lot of damage and, with the relative youth of the newer judges it could be sustained for decades.  According to the Bloomberg report, the current nominee Amy Coney Barrett, represents positons to the right of Chief Justice Roberts.  The fear is that the Court will overturn the Chevron Deference which maintains that federal agencies can interpret laws they administer as long as they are “reasonable.”

In the past, Anton Scalia supported the Chevron Deference, at least in the earlier part of his tenure, arguing that Congress intended to delegate authority and that the courts should uphold that perspective.  Now that interpretation of Congressional intent is considered problematic and the judges are favoring seeing the laws as they are written.  Flexibility in agency administration allowed the EPA to interpret the Clean Air Act to permit regulation of carbon emissions.  The new court would halt the authority of agencies to interpret policy.

Analysis

These two examples indicate the great impact the court can have on workers, businesses, and the economy.  Unionization is at an all-time low with 33.6% of government employees belonging to a union while only 6.2% of private workers are unionized. Nonunion workers average about $1500 less in salary and have to bargain for benefits.  In 2010, Wisconsin Governor Scott Walker signed Act 10 into law that significantly gutted the effectiveness of public employee unions, including the most state and most municipal workers as well as the teachers.  Teacher’s salaries fell an estimated 2.6% and their benefits dropped by 18.6%.   Walker successfully faced a recall vote in 2011 over the crisis in public unionization. 

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