WASHINGTON — Overturning mistaken decisions is an occasional duty of the Supreme Court, whose noblest achievement was the protracted, piecemeal repudiation, with Brown v. Board of Education (1954) and subsequent decisions, of its 1896 ruling that segregated “separate but equal” public facilities were constitutional. This Monday, the court will hear oral arguments that probably will presage another overdue correction.

The issue is: Are Mark Janus’ First Amendment rights of freedom of speech and association (which entails the freedom not to associate) violated when government requires him, an employee, to pay “fair share” or “agency” fees to a private entity, a labor union, to which government has given exclusive power to represent him, although he chooses not to be a member? Janus argues that an exclusive representative “is indistinguishable from a government-appointed lobbyist.” The fees are usually significantly more than half of — sometimes up to 100 percent of — union dues.

In its 1977 Abood decision, the court upheld such exactions. But the ruling contained the seeds of its coming — by this June — reversal, because it acknowledged this: “There can be no quarrel with the truism that, because public employee unions attempt to influence governmental policymaking, their activities … may be properly termed political.” And in a concurring opinion, Justice Lewis Powell noted that “the ultimate objective of a union in the public sector, like that of a political party, is to influence public decision-making.” So Abood made compulsory political contributions constitutional.

For 41 years, the court has advanced the slow-motion undoing of Abood with decisions subjecting various instances of compelled speech to strict scrutiny. For example, in 1983 it held that “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values.’” In 2014, the court said it is a “bedrock principle that, except perhaps in …read more

Source:: East Bay – Lifestyle


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