Life sure looked different before Election Day, Nov. 8, 2016. From a legal perspective, one big difference was the prospect of a U.S. Supreme Court whose majority would finally move toward the political center and away from the consistently hard-right positions taken by Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and, slightly less often, Chief Justice John Roberts. When this bloc was joined by Justice Anthony Kennedy, we found ourselves enduring free speech for corporate money in elections, the dismantling of the Voting Rights Act of 1965, and several cases eroding the rights of public-sector unions.
The death of Justice Scalia meant the death of the well-known Friedrichs case. Friedrichs, as many will recall, was a case financed by an anti-union right-wing group that sought to end the right of public-sector unions such as the MTA to collect a fair-share fee — or "agency service fee" — from non-members whom we are obligated to represent. And so while it would have been unseemly to welcome the death of the judge, it was not at all unseemly to welcome the end of the case.
Moreover, had Scalia been replaced by Judge Merrick Garland, who was President Barack Obama’s choice for the court, even the subsequent election of Donald Trump would not have been able to revive the principle of Friedrichs. Forty years of stable court decisions affirming fair-share fees as a necessary component of public-sector unionism would have been safe from right-wing attack. But like a zombie from "Night of the Living Dead," the Friedrichs argument is once again lurching toward us. Neil Gorsuch has now been sworn in as the ninth justice, and he is as firmly rooted in the legal right wing as Scalia was. And while the Friedrichs case itself remains interred, there is no shortage of look-alikes in the federal court system slouching toward Washington, D.C., and the Supreme Court’s now-full bench.
Everyone is trying to understand what Gorsuch’s ascension to our highest court foretells for our country, our government, our schools, our colleges and universities, our unions and our rights. Can we hope that his very human reaction upon learning of Scalia’s death — he publicly admitted that he cried — perhaps hints at a man of deep feeling for others? For students? For educators? For workers?
Don’t hope too much. Gorsuch’s track record as a judge on the 10th Circuit Court of Appeals reflects a mindset that favors corporations and employers and disregards working people, students, unions, consumers, the environment, and the role of government in protecting them all.
As the National Education Association has noted, Gorsuch has ruled against special needs students in every Individuals with Disabilities Education Act case he has decided. One student, for example, was denied any recovery under the IDEA after he left a school out of frustration with the school’s repeated violations of that law. A developmentally disabled student fared no better in Judge Gorsuch’s court despite having been placed at least 30 times in a small "timeout room," even though the student lacked the mental capacity to understand the purpose of the punishment.
We learn from the NEA that his dissents have delineated a far-right viewpoint that is repeatedly against employees. They include one in a case where the company’s failure to train an employee caused his death and one in a case in which a company fired a whistleblower. There was another in which a company discriminated and retaliated against a female truck driver — and let’s not forget his position in what has been called the "frozen truck driver case." Just Google "truck driver case Gorsuch." Read it and weep.
Gorsuch is not great on discrimination rights, either. He issued the majority opinion in 14 published cases and ruled for the employer three times more than for employees. He ruled in favor of a corporation’s right to exclude contraceptive coverage from employee health plans over the rights of women not to be discriminated against. And he is highly antagonistic to the power of federal agencies to regulate workplace discrimination, worker safety, health care and other rights.
The Million Dollar Question for public-sector unions is this: Where will Justice Gorsuch land in the next case that echoes Friedrichs? There are several pending around the country, but one in particular has already crawled out of its crypt: Janus v. AFSCME. It is an Illinois case that was, predictably, dismissed by the U.S. Court of Appeals for the 7th Circuit and will soon be the subject of a "writ of certiorari" — a petition to the top court asking for judicial review.
Like Friedrichs, it is funded by a well-financed anti-union outfit. Like Friedrichs, it was litigated on a fast track to the Supreme Court. And like Friedrichs, it is designed to debilitate public-sector unions by attacking the unions’ right to collect fair-share fees from non-members to cover their share of collective bargaining costs.
Of course, one can never be certain how a judge will rule in any given case. But the expectations here are about as low as they can go. We must proceed on the assumption that Justice Gorsuch will deliver exactly what President Trump appointed him to send forth: a Janus-faced ruling that speaks of First Amendment rights but is more honestly about knocking the financial legs out from under the public-sector labor movement.
Lest we forget: In Citizens United, the Supreme Court held that our federal elections are better served by the free speech of corporations and unions that choose to speak with money in campaigns. Diminish the union coffers and corporate money will speak even louder than it already does.
So are we left only with the option of agonizing over our fate? No. As a union, we control our own fate. Unions that have 100 percent membership do not worry about Friedrichs zombie cases. They do not collect fair-share fees because they do not need to.
Everyone joins. Every member knows why he or she is in a union. Every union member understands the most basic workplace idea: There is power in numbers.
Ben Franklin’s often-quoted words come to mind: "We must, indeed, all hang together or, most assuredly, we shall all hang separately." Or as the old union slogan says: "Don’t mourn — organize!"
Ira Fader is the general counsel of the MTA.