The Supreme Court has been getting bad press recently for an ideological divide that exactly corresponds to the justices’ political backgrounds: five Republican-appointed conservatives versus four Democratic-appointed liberals. In an end-of-term wrap-up, however, one of the best of the current Supreme Court advocates suggested that the critique was overblown, that the court’s rulings this year have shown surprising unanimity in some difficult and seemingly contentious cases.   The suggestion from Paul Clement, the former Republican U.S. solicitor general and go-to lawyer for conservative causes, had enough substance for a possible column. Chief Justice John G. Roberts Jr. as the Great Conciliator, the headline might say. Roberts was finally fulfilling his confirmation promise, the column would say, to work for more unanimity on the court by deciding cases narrowly with scrupulous regard for precedent.   Clement had examples to prove his point, and others can be seen in a review of the past year’s decisions. But before the column could be written, Roberts and his fellow conservatives threw the thesis for a loop. In a remarkable display of conservative activism, the court last week (June 21) issued a precedent-bending decision on one of the most politically contentious issues of the past year: the political influence of public employee unions.   The decision, Knox v. Service Employees International Union, stems from a politically charged episode in California in 2005. Gov. Arnold Schwarzenegger had called a special election in November to vote on two ballot measures that would curb public employee unions’ political clout and trim pay and benefits for state government workers. Public employee unions mobilized to fight the measures, which in fact the voters rejected, somewhat soundly.   To raise money for the “Fight Back Fund,” SEIU and other public employee unions imposed a special assessment. The assessment notice went to all employees covered by the union’s collective bargaining contract, union members and non-members alike. But it did not include the notice, required for regular assessments under a Supreme Court precedent, that non-union members could opt out of paying any portion of the assessment allocated to the union’s political activities.   The earlier Supreme Court decision, Teachers v. Hudson (1986), balanced the interests of public employee unions in financing their collective bargaining activities and non-union members who might object to the union’s political work. Unions were allowed to charge non-union members for representing them in labor negotiations. But the court recognized a constitutional right for non-union members to avoid being forced to subsidize “ideological activity” to which they objected.   The procedural safeguard established the so-called Hudson notice does not sit well with public employee unions, but they have lived with it. In hindsight, SEIU made a mistake in not sending such a notice when it issued the special assessment in 2005. Seven justices agreed on that point, which was all that was necessary to decide the present case.   The Roberts Court’s conservative bloc went further. In an opinion dripping with anti-union animus, Justice Samuel A. Alito Jr. depicted the existing legal rules as “a remarkable boon” for unions. SEIU’s “aggressive use of power to collect fees from nonunion members” he termed “indefensible.” And the remedy for the future was not simply to require a Hudson opt-out notice for special assessments, but to establish an opt-in requirement that prevents unions from imposing any part of a special assessment unless the non-union member “affirmatively consents.”   The existing rule already imposes “a significant burden for employees,” Alito wrote. “[T]he burden would become insupportable if unions could impose a new assessment at any time, with a new chargeability determination to be challenged.”   As Justice Stephen G. Breyer pointed out in dissent, that passage casts doubt on a precedent accepted as settled for a quarter-century. More troublingly, the conservative majority reached out to take sides in political disputes now raging in state capitals: think Wisconsin. “There is no good reason for the Court suddenly to enter the debate,” Breyer wrote, “much less now to decide that the Constitution resolves it.”
Breyer spoke for all four liberal justices on the point: Elena Kagan joined his dissent, while Sonia Sotomayor and Ruth Bader Ginsburg rejected the new opt-in requirement even while agreeing with the majority on the result in the case. “I cannot agree with the majority’s decision,” Sotomayor wrote, “to address unnecessarily significant constitutional issues, well outside the scope of the questions presented and briefing.”
The decision came on the same day that the court neatly finessed another highly contentious issue: broadcast indecency. In a unanimous ruling, the court in FCC v. Fox Televisions Stations threw out findings that Fox and ABC violated indecency rules by fleeting expletives (in Fox’s case) and fleeting body parts (in ABC’s) but left it up to the FCC to consider changing its policy in the future.
Credit Roberts perhaps with helping fashion unanimity on an issue that had divided the justices in argument. But credit him too with the activist, 5-4 ruling on public employee unions that would have lacked a majority without his vote. Side by side, the two rulings exemplify the Roberts Court’s dual personalities alternating between judicial restraint and politically-tinged activism. With major rulings due this week on President Obama’s health care law and Arizona’s immigration law, the nation waits to see which of the court’s personalities will win out as a momentous term ends.