The latest term that started on Monday 5 October 2015 has an interesting theme according to a report on Bloomberg.  It seems that conservatives are using traditionally liberal constitutional tools to try and prohibit government affirmative action and cripple trade unions by removing their power to have subscriptions or fees deducted by employers from non-members.   It is suggested that the  supposed common thread  is that earlier precedents could be overturned by using a liberal principle, ‘one that progressives believe underpins the very practice at issue.  Affirmative action could die in the name of equality.  And unions could lose in the name of free association’.

Read Noah Feldman’s article The Supreme Court’s Next Landmark Cases first published on Bloomberg on 4 October 2015.

Excerpts

Affirmative action has survived judicial death longer than many court-watchers predicted.  The basic constitutional challenge to the practice has always been the same.  Affirmative action is designed to produce equality in a society with a legacy of racial discrimination.  In order to do that, it treats individuals differently on the basis of race.  To opponents, therefore, affirmative action violates the equal protection of the laws.

. . . . .

The parallel to the conservative legal assault on unions is striking.  Unions depend on the right to free association.  If a group of corporations banded together to set the price of wages, that would be an antitrust violation.  But for individual workers to do so has been treated differently in the modern era.  Some of this is the result of solicitude for worker’s rights.  But some of it derives from the basic notion that individuals should be free to group together to pursue their common interests.

. . . .

In this term’s case of Friedrichs v. California Teachers Association, the right not to associate is in play as the reason non-members should no longer have to pay fees.  In June 2014, the court, in a 5-4 decision written by Alito, strongly signaled that it’s ready to abandon the Abood compromise.

 

If that occurs, it will be a victory for the clever constitutional argument that freedom to associate in a union implies the right not to associate.  You might think that paying for a service shouldn’t count as speech or association.  Or you might think that money is speech and that it’s unfair to make workers pay for a union if they want no part of it.  Either way, a change in the law would mark a remarkable flip along the axis of free speech and associations.