The retirement of Justice Anthony Kennedy largely overshadowed an important decision handed down by the Supreme Court.
In this case, as Robert Barnes of the Washington Post reports, "Conservatives on the Supreme Court said that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union." Barnes went on to say, "This is a major blow for the U.S. Labor Movement." He went on to describe, and this is right, that the court in a 5-4 decision, again Justice Kennedy in the five, overturned a 40-year-old precedent and said that compelling such fees, that is from labor unions, was a violation of workers' free speech rights.
"The rule could force the workers," said the court, "to give financial support to public policy positions they opposed."
In this case, the majority opinion was written by Justice Alito. What's most important to recognize in this case is the pattern. Just two days ago the Supreme Court handed down a decision we discussed early on The Briefing. In that decision, the court invalidated a law in California that required crisis pregnancy centers and the people who work in them to articulate a state position to coerce that speech in violation of their own deepest moral and theological commitments. Similarly, and here's the pattern, in the decision in the public-sector union case, a majority of the United States Supreme Court said that political speech could not be coerced from those who were required by the laws in respective states to fund the labor unions.
Now in order to understand this decision, and make no mistake, it's a massively important decision, we have to go back and understand the history of the labor union movement in the United States. Christians don't often think about this history but we should. Especially in the early decades of the 20th Century, labor unions emerged as a check on what was thought to be the unchecked power of industrialists, of business interests in the United States. They were understood to be trampling upon the rights of workers. Labor unions emerged as a very powerful counterbalance to the power of business owners and industrialists. During the middle decades of the 20th Century, labor union membership mushroomed in the United States. So much so that at one point about 50 percent of workers in the United States either were or had been members of a labor union.
Vast changes have taken place in the United States, including the fact that there has now been established by Congress a vast array of labor laws. There are all kinds of protections for workers that are now understood to be a part of American law and constitutional order. Furthermore, in the vast economic transformations that have taken place over the last several decades, workers have in effect gained authority by expertise. The fundamental changes in the society have meant that labor unions have largely been sidelined.
Just to think about how that has happened, in 1983 still 20 percent of all American workers were members of a labor union. By 2016 that was down to less than 11 percent. Here's what's crucially important: In the private sector, labor representation right now is less than 7 percent. That means 93 percent of private sector employees in the United States are not covered by a labor union.
They haven't joined a labor union. So where have labor unions now and in recent history been particularly influential? Well, it's where labor unions didn't even emerge in the early decades of the 20th Century, in so-called public-sector unions. This mostly represents government workers. They include not only those who work in the apparatus of municipal, state and federal, or for that matter, civic governments. It also includes a vast army of teachers, many of whom are members of the various teachers’ unions.
The Supreme Court decision has to do specifically and exclusively with public sector labor unions. But that's where virtually all the action has been in American union activity and in the political activity of those unions for the last several decades. The decision means that public sector employees cannot be compelled to pay dues to public sector unions, even if those unions may claim they've separated out their political speech from their other activities. Because, as the majority of the Supreme Court said, those other activities are also political and requiring the contributions is in effect coercing speech.
That means that another of the most interesting questions that will be answered in months to come is how much money these public-sector unions have when they cannot compel non-members to pay their dues. It was another win for free speech. It was another reminder of the importance of the United States Supreme Court.
Albert Mohler, president of The Southern Baptist Theological Seminary in Louisville, offers a daily analysis of news and events from a Christian worldview. This is a rush transcript. This copy may not be in its final form and may be updated.