SCT deadlock denies government workers free speech and economic liberty

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The first shoe has dropped on a major post-Scalia case before the U.S. Supreme Court. Perhaps more accurately, the work boot dropped. It thudded on the expectations of those who favor personal and economic liberty.

In a 4-4 deadlock, the Court permitted the state of California to continue forcing workers to subsidize government unions, as the price for working for state and local government. The euphemism for this shakedown is “fair share agency fee.”

For decades, the Supreme Court has displayed a marked predilection for deferring to government mandates that impinge on personal autonomy with respect to economic decisions. In a recent headline-grabbing case, the Court upheld the individual mandate that finances Obamacare’s coercive universal medical insurance. That mandate, of course, magnifies the power of government and enlarges the footprint of insurance companies, while encroaching on areas of life traditionally left to individuals, families, businesses, non-profits, churches, and voluntary associations. Now, through inaction, the Court passively approves an employment mandate that pours funds into Big Labor, at the expense of personal choice.

Contributing more than 90 percent of their campaign largess to liberal Democrats, unions make up a sizable part of the financing apparatus of the Democrat Party. Large institutional unions maintain clout through laws in almost half the states that compel government employees to pay into a union, even when they are completely disenchanted with that representation. So much for those liberals who constantly prattle about the need for “choice.” What they really mean is “choice for me, but not for thee.”

In Friedrichs v. California Teachers Association, the Supreme Court’s 4-4 deadlock leaves in place a ruling by the U.S. Court of Appeals for the Ninth Circuit that sided with the unions. The case was brought by Rebecca Friedrichs, a California educator who courageously objected to being compelled to give her hard earned money to the California Teachers Association. In a 2014 column, Friedrichs wrote: “[M]illions of public school teachers have lost their rights to free speech and free association. We are required, as a condition of employment, to financially support teachers unions and their political agendas…Ironically, the union is using our involuntary dues monies to fund the court battle against us.”

Because of the power of her argument along with earlier narrow court rulings, advocates of economic freedom had well-founded hopes of finally liberating workers from the vice-like grip of government and unionism. Then came the jolt: Antonin Scalia died unexpectedly on February 14.

There would be no triumph for working families, tired of states and localities confiscating their hard-earned wages and turning them over to union bosses. There would be no re-invigoration of First Amendment rights. There would be no clarifying restatement of the obvious: That persons should not be forced, as a price of employment, to contribute part of their wages to an organization with which they profoundly disagree.

Instead, by doing nothing, and letting the lower court ruling stand, the Court reaffirmed the power of big government to collude with big labor in order to limit the rights of individuals. As a practical matter, the action results in the enlargement and enrichment of public sector unions, which then use their influence to lobby for additional costly government expansion.

The fact that such tactics encroach on the personal and economic rights of workers bothers union bosses and big government proponents not a whit. After all, they say, workers can go opt-out and pay a “fair share” agency fee instead. Such a futile effort confers on workers the burden of funding a union, while surrendering the opportunity to influence it in even the most minuscule way. It’s parallel to giving up the right to vote or to free speech in return for a slightly adjusted tax bill, a modern bureaucratic version of “taxation without representation.”

Thus, the workers find themselves in a convoluted Catch-22. They can pay full dues to a union with which they disagree, thereby retaining the right to vote in union elections. Or they can pay the euphemistic “agency fee,” which in theory provides relief from funding the political activism of the union, but in reality prevents the worker from having the tiniest impact on the union by speaking or voting against the most extreme leftist candidate or agenda item.

Of course, unions might counter: “No one makes you work for state or local government.” And that certainly has a dim ring of truth to it. But why should someone with conservative political views fund government through their taxes, and yet give up the right to work for the largest employer in the country — government? If only liberals were employed by government, then … choose your nightmare scenario.

The right to agree to the terms of employment is among the most basic individual economic rights. With the Friedrichs tie vote, the Supreme Court has left in place terms of employment that conflict both with free speech and with free economic choice.

Equally significantly, Friedrichs highlights the overriding importance of the vacant ninth seat on the Supreme Court. Clearly, Scalia’s originalist voice is sorely missed. Nothing the next president does will have a more lasting impact than his or her judicial appointments. The men and women appointed to the bench by the next president will shape the contours of our country and our lives, both economically and culturally, for decades to come.

Joseph Tortelli

Joseph Tortelli

Joseph Tortelli is a freelance writer. Read his past columns here.