The effect of some Supreme Court rulings is immediate and clear, at least initially.
Last week, the Court’s Aereo ruling brought a quick end to that service, which I’ve been a fan of here on these pages. Another ruling took routine cell phone searches out of the hands of local law enforcement, and perhaps from customs agents in the future as well.
But the effects of today’s rulings against unions in Harris v. Quinn and for small firms with owners opposed to parts of the Affordable Care Mandate on moral grounds is anything but quick clear. Though the direction shared by both rulings places individual rights a step-higher against federal policies, only nuanced readings and future rulings will show how broad and high that extra step may be.
Harris Could Rewrite the Public Union Landscape, or Just Modify Edge Cases
Harris questions if certain public employees can be compelled to pay for union representation. It raises the question if public employees can be required to associate themselves financially through a union which they may personally oppose on a variety of grounds.
The case was summed by Justice Anthony M. Kennedy, who during arguments declared to Paul M. Smith, the lawyer for the health care workers’ union that “your position is that the public employees must surrender a substantial amount of First Amendment rights to work for the government.” And that strikes to the heart of a union’s power, that entire classes a members can be compelled to pay for representation thereby supporting activities they may in fact be personally opposed to.
Unions, Governments and Monopoly Power
From my obscure vantage point, the power structure of both government and public unions are rooted to some degree in monopoly powers. Public schools have monopoly standing to use public funds and compel attendance. Law Enforcement has a monopoly power in the domestic use of deadly force; courts in disposing of legal disputes and in criminal matters the ability to compel incarceration.
Likewise, public unions speak on behalf of all members of a represented class, and are able to mobilize both dues and the threat of strike as tools in negotiation. Anything that erodes their representation of employees as a monolithic class lessens their influence.
Today’s 5-4 ruling erodes the ability of unions to compel payments from at least a subclass of fractionally employed public workers. In light of Citizens United which expanded the ability of business to directly invest in political activities, Harris pulls back on the power of unions which counter balance the interests of consolidated wealth. The question is both how broadly this ruling will extend today, and how that interpretation may change over time.
Burwell v. Hobby Lobby et al.
Also in a 5 to 4 ruling, the Court declared that requiring family-owned corporations to pay for insurance coverage for contraception violated laws protecting religious freedom.
As with Harris, the reach of the ruling will be seen over time. If close held firms can’t be compelled to provide insurance covering contraception, what about the freedom of religion promised to Christian Scientists reluctant to medicalize health conditions? Or the right to the pursuit of happiness to those who believe immunization to be dangerous or deleterious?
Though the classes of participants (part-time health workers or family owners of certain sized businesses opposed to contraception) may seem like edge cases, they test the limits to First Amendment protections. Harris tests the freedom of association implied in the first amendment’s Assembly clause; and Hobby Lobby the extent of the free exercise of religious conscience.
So the reach of these findings is likely less about the specifics of these cases, and more about precedent of balancing constitutional protections against any range federal policies, of which these are just a single early test case.