That Escalated Quickly

The Roberts Court is about to make read right-to-work laws into the Constitution. You will be astonished to discover that Antonin Scalia, America’s Last Honest Judge (TM), is an unprincipled hack whose First Amendment jurisprudence swings wildly based on the interests of the Republican party:

In theory, public sector unions should have had a reasonable chance of prevailing in the court. Justices Antonin Scalia and Anthony Kennedy have long held that the First Amendment rights of public sector employees should be minimal. In 1990 case, Scalia and Kennedy dissented from an opinion holding that it violated the First Amendment rights of public employees to be required to join the Republican Party as a condition of employment. If public sector employees can be compelled to join a political party as a condition of employment, it’s essentially impossible to argue that they can’t be required to pay dues for the benefits they receive from union representation.

But to be optimistic about Scalia and Kennedy assumes that they will principle above politics. Alas, there’s little reason to believe this. Most famously, Scalia and Kennedy’s argument that the Affordable Care Act was unconstitutional was plainly inconsistent with Scalia and Kennedy’s prior holding that the federal government could seize homegrown medical marijuana not intended for distribution. Indeed, the inconsistencies were so flagrant that Justice Ruth Bader Ginsburg’s opinion holding the ACA constitutional in its entirety cited Scalia’s earlier opinion chapter and verse.

Monday’s oral arguments seem to make it clear that Scalia and Kennedy will decide the case based on the interests of the Republican Party rather than on their previous First Amendment doctrines. Both were relentlessly hostile not just to the arguments made on behalf of public sector unions, but to the unions themselves. Anybody holding out a hope that they may feel constrained by their previous opinions is surely disabused of the notion now.