The Anti-Union Roberts Court

By The New York Times | Editorial

23 June 12

he Supreme Court's ruling this week in Knox v. Service Employees International Union is one of the most brazen of the Roberts court. It shows how defiantly the five justices act in advancing the aggressive conservatism of their majority on the court.

The court's moderate liberals were rightly dismayed by the majority's willingness to breach court rules in pursuit of its agenda. In this labor union case, there is no getting around that the legal approach is indistinguishable from politics. The court's five conservatives ruled that in 2005, Local 1000 of the Service Employees International Union should have sent a notice to all nonmembers it represented when it imposed a temporary 25 percent increase in union dues for public-sector employees in California to fight two anti-union ballot measures.

The court said the union infringed on the free speech rights of the nonmembers by not giving them the chance to prevent the use of their dues to support expressions of political views unrelated to collective bargaining. Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed with this narrow judgment only.

This produced a 7-to-2 ruling on that specific question. But Justice Samuel Alito Jr., writing an opinion representing the conservative five only, went far beyond this principle, which has been settled law since 1986.

The majority held that "the union should have sent out a new notice allowing nonmembers to opt in to the special fee." Justice Alito described the longtime rule allowing union charges to nonmembers unless they opted out of paying part of the dues as "a remarkable boon for unions" that approaches "the limit of what the First Amendment can tolerate." For the first time and on its own initiative, the court mandated an opt-in requirement.

To reach this decision, Justice Sotomayor explained in an opinion joined by Justice Ginsburg, "the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the court's proper role in our system of separated powers." Under the court's rules, only the questions set out in the appeal are to be considered by the court.

As Justice Stephen Breyer noted in a dissent joined by Justice Elena Kagan, "each reason the court offers in support of its 'opt-in' conclusion seems in logic to apply, not just to special assessments, but to ordinary yearly fee charges as well."

The conservative majority strode into the center of the bitter debate about right-to-work laws preventing unions in 23 states from requiring nonmembers to pay any union expenses, including those supporting collective bargaining that benefits nonmembers. It used this narrow case to insert itself into that political controversy when there was no reason to do so.