The incredibly high stakes that were at play in the 2016 election were revealed again in two ways on Wednesday. First, the retirement of Justice Anthony Kennedy will provide President Trump with a second Supreme Court nomination. And instead of replacing the most hard-core originalist on the court following the death of Antonin Scalia, this time it will be the justice seen as the ‘swing vote” that has decided nearly every important case since Sandra Day O’Connor retired.
The importance of this appointment was also borne out by the dissenting opinion written by Justice Elana Kagan in the Janus vs AFSCME that was handed down yesterday. When asked if the Government–acting as an employer–has the power to require someone to join a union, the Supreme Court decided by a 5-4 decision (with Kennedy being the deciding vote again) that nowhere in the Constitution is the Government provided with that power.
In her dissenting opinion Justice Kagan argued that “The First Amendment….was not meant to undermine but to protect democratic governance–including over the role of public sector unions”. I had to read that three times yesterday after I first saw it to make sure that I hadn’t mistaken some of the words because the First Amendment says the exact opposite of what Kagan writes.
Unions have long argued that the phrase “peaceably to assemble, and to petition the government for a redress of grievances” as the basis for making Government work a “closed shop”. What was argued–correctly–in the Janus case is that while the Government must recognize organized labor, it does not have the power to compel someone to join that union (or assembly if you will)–no more than it has the power to compel you to join the Foxconn protests today in Pleasant Prairie or to stand and cheer as veterans walk by in the Fourth of July parade.
And yet Justice Kagan argues that somehow, the Government can compel you to join the assembly–and more importantly–pay that assembly to “speak on your behalf”. And therein lies the danger that was never really addressed in the 2016 campaign. Save for the Electoral College, two seats on the Supreme Court almost assuredly would have gone to Justices that would look for any and all ways to expand government power–in direct opposition to the constitutional tenets put into place to always limit the power of the Government–and to expand the rights of the individual.
Of course, that’s what a lot of conservatives thought President Reagan was doing 30-years ago when he appointed Justice Kennedy to the bench. To paraphrase Forrest Gump, the Supreme Court is like a box of chocolates–you never know what you’re gonna get.
