Linda Greenhouse revisits a prime example of the 1% Court in action

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In anexcellent column this week, Linda Greenhouse, former Supreme Court reporterfor The New York Times revisits acase, Knox v. Service Employees InternationalUnion,which Alliancefor Justice has been following closely, but much of the media have ignored.

Justice Samuel Alito

Knox illustratesboth how the current majority goes out of its way to favor big business, atheme of our most recent First Monday documentary, UnequalJustice, and also the extreme judicial activism of the court’s extremeright – anotherissue we’ve followed closely.
Greenhouse also cites Prof. Benjamin Sachs who, onthis Blog and elsewhere, has argued that, in a post-Citizens United world, the majority’s view gives unions notablyless “free speech” than corporations.
As Greenhouse points out, the issue in Knox was narrow and seemingly arcane—whether workers who were notmembers of the union had been given adequate opportunity to “opt out” of oneparticular “special assessment” to be used for some political activity.
But the right-wing majority, led by Justice Samuel Alito,seized upon the opportunity to go far beyond this narrow issue.  They questioned whether unions have a rightto require non-members to affirmatively “opt out” of any use of their dues forpolitical activity.  They even questionedwhether unions have a right to charge dues for non-members at all, even thoughthose non-members, of course, receive all the benefits of collective bargainingagreements.
Greenhouse calls it “flagrant activism.”  She writes: 

In his opinion,Justice Alito denied going beyond the confines of the question the partiesbrought to the court, but Justice Sonia Sotomayor shredded his defensiveassertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, JusticeSotomayor said the case, as presented, provided no occasion for the majority’sattack on the opt-out rule, let alone its expressions of skepticism about theconstitutionality of the agency shop.  …  Justice Sotomayor said: “To cast serious doubton longstanding precedent is a step we historically take only with the greatestcaution and reticence. To do so, as the majority does, on our own invitationand without adversarial presentation is both unfair and unwise.”

Justice Breyer,joined in his dissenting opinion by Justice Kagan, noted that “the debate aboutpublic unions’ collective-bargaining rights is currently intense.” He added,“There is no good reason for the court suddenly to enter the debate, much lessnow to decide that the Constitution resolves it.”