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While they mourn Scalia, labor needs to step it up

From Citizens United, Harris v. Quinn and 8 years of G.W. Bush, Saclia's reign may continue to prevent progress even after his death

Kris LaGrange's picture
Feb 15, 2016

When it happened and the news broke, we at UCOMM asked ourselves if organized labor was granted a gift from God? Do we gloat? Is chatting this up too quickly depict poor taste? After 24 hours, every liberal news personality did a dance while conservatives did their best to see if anyone agrees that the late Supreme Court Justice Antonin Scalia was good for this country.

Scalia’s death had an instant impact on public sector unions, thus our initial question -  was his passing a gift from the big guy upstairs? Anyone following the recent Friedrichs v. California Teachers Association case knows that it appeared that the Court may have been ready to strike down public sector union’s right to collect mandatory union dues.  It could’ve been a 5-4 decision with the conservative justices voting for a national Right to Work (for less) decision.  Now that decision is in flux because there are only 8 justices.

Justice Scalia was known as one of the most conservative members of the court. He was a consistent conservative vote since the days of President Reagan.  Some of his recent votes included voting against the decision to legalize same sex marriage and voting twice to repeal the Affordable Care Act. Also because of Scalia, Citizens United is allowing the Koch Brothers to buy anti-union politicians all across this Country, he stripped healthcare workers of their union status in Harris v. Quinn and Scalia gave us eight years of George W. Bush. He should’ve recused himself from that infamous Florida election nightmare, but hey woulda, coulda, shoulda…

Scalia’s death opens up a fight for control of the US Supreme Court.  Not since the 1970’s have liberals had the chance to control the court.  With the likelihood that Friedrichs will be bounced back to the appeals court, it is likely that in the next few years another collective bargaining case will come before the court. In addition to even more challenges to the Affordable Care Act, President Obama is likely to face the fight of his life to get a liberal or even a moderate through the Senate to replace this divisive conservative icon.  Currently to get a nominee out of the judiciary committee, President Obama will need two Republicans to vote for the nominee.  Additionally, he will need to get 4 Republicans to vote for the nominee. With this, organized labor has a lot of work to do.

The Friedrichs case is an interesting look at our judicial system.  In an effort to have the court hear the Friedrichs case while the conservative majority was still in tack, the lawyers on Friedrichs side fast-tracked the case through the appeals courts.  That meant that they asked the appellate court to decide against them without a trial so that the Supreme Court could take on the case.  Now that decision is in doubt as many observers believe it will come out as a 4-4 tie.  With a tie, the previous court’s ruling will stand, allowing fair share agency fees to live another day.  Although one would think that the lawyers behind the case will try to bring it up again, should Obama get his nominee through (or the Democrats win the presidency and appoint a moderate to left of center judge) the Friedrichs side will face an uphill climb.  Of course if Congress blocks Obama’s nominee and the Republicans win the Presidency then unions will be back where they started. So like we mentioned before, organized labor has a lot of work to do.

Even a moderate Democrat would be a huge partisan departure from the current court.  The Roberts Court, as the current court is known, is considered one of the most conservative courts in American history.  The current makeup of the court has 4 liberals 3 conservatives and Justice Kennedy as the lone “moderate.”  Kennedy usually votes with the conservative wing, but has been the justice who is most likely to switch sides.  With the Congress committing to fighting President Obama on the nomination of a new justice, Kennedy looks like he will be the only thing stopping a series of 4-4 ties that will essentially shut the court down for the next few months.   

It’s clear that if those on the left want to see their issues defended they will need to spend the next few months organizing and pressuring Republican Senators to support the nominee.  Already Ted Cruz has said that the Senate should block President Obama’s nominee and allow the next President to appoint Scalia’s replacement.  Additionally, Senator Mike Lee, a Judiciary Committee member, has said that Obama’s chances of getting a nominee passed are less than zero.  With two votes already solidly against President Obama, BAM has his work cut out for him to make sure that the seat does not stay open for the next year. This effectively shuts down the highest court in the land. 

President Obama also has one other option, should Congress block his nominee, he can exercise a recess appointment.  This may be a long shot, but Eisenhower did it in an election year after Congress went home to campaign.  Eventually the justice, William Brennan, was confirmed after the election and went on to be what Justice Scalia called "probably the most influential Justice of the 20th century." 

Brian Young contributed to this story.

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