The Supreme Court is Gripped by an Unsustainable Conception of Individual Freedom
by Benjamin Studebaker
Today the Supreme Court voted, 5-4, to enable public sector workers to unilaterally withhold contributions from their unions. Justices Roberts, Alito, Gorsuch, Thomas, and Kennedy were in the majority, with Kagan, Ginsberg, Sotomayor, and Breyer in dissent. The principle guiding the majority’s decision is simple and intuitively appealing. When workers pay unions dues, those unions use that money to fund political speech. Individual workers may not agree with the union’s speech acts, and therefore compelling them to pay dues ties their employment to their willingness to espouse a particular kind of political speech with their wallets. The court argues that requiring workers to make certain kinds of political speech acts with their wallets to retain employment violates their free speech rights. The argument is internally valid–it makes sense, given a particular conception of individual freedom. The trouble is that this conception of individual freedom is destabilising the labour market in a politically dangerous way, and in consistently choosing to interpret this principle in this way the court is threatening the legitimacy of the state.
After all, it’s not just those workers who disagree with their unions who may withhold payment as a result of this ruling. Workers today face a lot of economic pressure. Their living standards have stagnated and it’s become harder and harder for folks to get by. Consequently even those who agree with the unions may be reluctant to pay thousands of dollars to support the cause, if they can avoid doing so. These people will, for perfectly understandable reasons, become free riders. As the body of free riders increases the strength of the union collapses, and its inability to secure meaningful gains for its members will diminish its credibility and its number of dues-paying members further. This creates a cycle which gradually guts the union:
One of the key ways America has changed since the time of the founding is that it has become increasingly important to Americans that they share in national prosperity. Before the “Square Deal” and the “New Deal” and the “Fair Deal”, Americans were used to getting shafted by their employers and masters, because this was largely the way it had always been for working people since time immemorial. But industrialization created new forms of misery for workers. Packed into miserable, disease-infested tenements and forced to work far longer hours than peasants did in the Middle Ages, workers became increasingly despondent.
In this time of unprecedented human misery, workers radicalised, turning to unions, Marxism, and anarchism. In the first half of the 20th century, several factors emerged enabling these unions to become more powerful and to extract a variety of concessions from our government. The World Wars created an unprecedented demand for and dependence upon the industrial worker and the need for capital to finance the war drained the savings of their employers. The Russian Empire fell to communism because it couldn’t get its workers to continue supporting a war effort in which they were treated as human refuse. The perceived success of communism in the Soviet Union filled the American ruling class’s hearts with fear of what might happen if they didn’t keep workers happy. And then, the Great Depression produced a collapse in capital mobility. Trade volumes fell, and it became more difficult for rich people to respond to higher taxes and wages by taking their business elsewhere. Capital mobility and war spending had made the owners weaker than ever before, while the need for soldiers and industrial workers and the perceived threat of communism made the wage earners look strong.
For a brief moment in history, the state was more afraid of the wage earners than it was of the men who paid them. During that moment, a host of concessions were made to wage earners. Unions were protected and institutionally entrenched. Tax rates and wages would rise. The state committed itself to full employment–to ensuring every worker who wished to work would be able to find a job. Working hours were gradually reduced, until they were only slightly above the medieval peasant level. This transformation in living standards for ordinary people was unprecedented in human history, and it created expectations in ordinary people never before seen. Never again would workers just put up with being denied their share of the benefits of economic development.
But in more recent days, our courts have decided that it’s more important to adhere to a particular interpretation of the constitution and of individual rights than it is to preserve and maintain the deal negotiated between employers and employees during the 20th century. They are putting a particular interpretation of a statute ahead of the needs of the state, as lawyers and judges are often wont to do. The consequence of this decision, and decisions like it, is that living standards in America have stagnated over the last two decades, only recently returning to the level achieved in 1999:
It’s not the middle ages anymore. In the wake of the 20th century, ignoring the needs of ordinary people will not be accepted or tolerated. It doesn’t matter what principle of individual liberty underwrites it–if you screw ordinary folks in the 21st century, they will act up. Sometimes that will mean a return to the left, as it recently did in New York, where the democratic socialist Alexandria Ocasio-Cortez defeated Joseph Crowley. Other times it will mean support for far right nationalists who promise to disrupt the international economic order, as it did when millions of people–including a significant number who voted for Barack Obama in 2008–chose to support Donald Trump in 2016.
If the powers that be don’t want these kinds of political disruptions, they need to abandon their 18th century individual freedom fetish and recognise that a sustainable economic order requires political institutions which protect and defend workers.
But unfortunately, our courts have a long history of putting their fetishes first and the needs of democratic legitimacy second. We had to pass a constitutional amendment just to make the Supreme Court permit the creation of a progressive federal income tax. During the 30s, the Supreme Court proved such an aggravating obstacle to President Roosevelt’s New Deal agenda that FDR considered attempted to increase the number of justices on the bench to break the deadlock:
More recently, the court has been implicated in repeatedly increasing the ability of corporations and rich people to use their wealth to make their voices heard politically. The more the political system becomes balanced against workers, the more the economic system becomes balanced against them, and the harder it is for America to deliver the growth in real living standards it must deliver to meet Americans’ expectations and retain its legitimacy in their eyes. These decisions have deprived workers of legal political means of asserting their expectations and needs, forcing them to embrace more creative political movements which are more willing to smash the institutions and norms which stand in their way.
By once again contributing to the impediments workers face, the courts have contributed to the radicalisation of our politics and to the rise of socialist and nationalist movements, many of which have little respect for the antique conceptions of liberty over which the court’s justices obsess ad nausea. In the long-run, attempting to defend individual liberty in this way can only accelerate its downfall.