The Supreme Court decided to not destroy public sector unions in a 4-4 decision yesterday. A split decision affirms the lower court’s ruling, which in this case was the Ninth Circuit’s decision to affirm a yet lower court’s ruling that compelling public sector workers to pay fees used to support their union’s negotiation and legal representation shops doesn’t violate those workers’ First Amendment rights. This had been settled law for decades but conservatives have been using the courts to reopen cases they can’t win through legislation, hoping to get the Supreme Court to deliver them victories.
Unfortunately, this strategy had been working. In a series of 5-4 decisions in recent years, the Supreme Court ruled in favor of conservative interests again and again. In 2010, the five conservative Supreme Court justices unleashed unlimited corporate money into our elections in the infamous Citizens United v. FEC decision. In 2012, the conservative faction on the Court weakened an important part – Medicaid expansion – of the Patient Protection and Affordable Care Act, while four conservative justices were ready to destroy the law completely. In 2013, they stripped the Voting Rights Act of one of its most important rules that protected voters in states with a history of disenfranchisement. These are just three of the most high profile cases.
So why did the Supreme Court just decide against rewriting law in order to achieve conservatives’ goals? Scott Lemieux, an expert on the Supreme Court and constitutional law, explains the obvious: due to the death of Antonin Scalia in February, the conservative faction on the Court is now one justice shy of a majority. Since many cases in recent years were 5-4 decisions in favor of conservative interests, we’re likely to see 4-4 splits over contentious cases until the vacancy is filled. Scalia would have joined with the conservatives in the public sector union case, and in the alternate reality in which he hadn’t died, public sector unions would have been crushed yesterday.
With the four remaining conservative justices all nominated by Republican presidents, and the four liberal justices all nominated by Democratic presidents, Scalia’s passing brought to the forefront an aspect of presidential elections that is always there but never stressed enough: the president appoints the lifelong members of the Supreme Court. While some Republican senators are wavering on the total obstruction strategy, it’s still unlikely that the Senate will vote on President Obama’s nominee for Scalia’s seat, Merrick Garland. The next president is going to fill that seat, and possibly one or two more. The appointment on the table, and the hypothetical appointments, will determine the course of the Supreme Court for a generation.
It will be interesting to see how the Supreme Court vacancy plays in the general election. There are real and important differences between the Democratic Party and the Republican Party, and the type of justice their presidential candidates would appoint are among the starkest. Supreme Court cases are confusing even to politics junkies like myself, so how do candidates leverage the situation to motivate voters? Can the Democratic nominee boil it down to easily understood real life impacts, such as: do you want your health insurance policy to cover reproductive health? do you think corporations shouldn’t be able to spend as much money as they want on elections? do you think everyone should be able to vote with as little hassle as possible? do you think women should be able to decide what to do with their own bodies? do you think LGBT citizens should be able to marry whomever they want? do you think people who get benefits from union representation should help fund those unions?
These are just a few of the issues that are going to be contested in the future. If you answered “yes” to the above questions, whether the nominee is Hillary Clinton or Bernie Sanders, the Democratic Party’s candidate will appoint justices that side with you.