Friday, September 5, 2008

SCOTUS Says No to SG Request for Argument in Union Dues Case

SupctTony Mauro on the Blog of the Legal Times reports that the Supreme Court has denied the Solicitor General's request to present argument in Locke v. Karass, a case in which deals with whether the fees paid by non-union members of a bargaining unit to cover the cost of collective bargaining can be used for litigation that does not directly benefit their bargaining unit.This denial is noteworthy because such denials are very rare. Usually, if the SG wants some time, the Supreme Court is only too happy to provide it.

According to Mauro, the employees who challenged the use of their money objected to the SG's participation, and the interest group supporting them (the National Right to Work Foundation) has said that the request (and brief filed by the SG) was "yet another example of the Bush Administration doing the bidding of labor unions in disputes over mandatory union fees."

Hmmmm. The Bush administration doing the bidding of labor unions? Seriously? Wow.


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If you doubt our spokesman's characterization, I'd suggest you read the SG's Brief. And also his amicus brief in Davenport v. Washington Education Ass'n.

Posted by: James Young | Sep 5, 2008 4:41:24 PM

I have read both briefs. In Locke, the SG came in on the side of the union argument (the brief is available at, but agreeing with the position does not equate to "doing the bidding of the unions." To say that this is evidence that the Bush administration is some kind of puppet is a stretch. It's inferring causation from mere correlation in a single instance.

In Davenport, the SG came in on the side of Washington state and against the union position, arguing that the opt-in provision didn't violate the 1st Amendment ( (subscription required, link to briefs after case)). How is that evidence that the administration was doing the bidding of the unions? Is it simply that the government takes the position that nonmembers can be compelled to pay fees to cover the costs of collective bargaining and any other sufficiently direct benefits they receive by being members of the bargaining unit?

Posted by: Marcia McCormick | Sep 5, 2008 6:54:49 PM

Well, Marcia, glad to hear you've read both briefs. It wasn't readily apparent from your post.

At the Davenport oral argument, then-SG Paul Clement (having sought and received argument time and knocked the NRTW attorney handling the case out of oral argument) took a dive on the more important larger question as to why nonmembers should have to object to paying full union dues at all, when they have already remained nonmembers.

As Dahlia Litwick earthily put it at the time (I may be paraphrasing slightly), "If the pretty freshman in your Russian Lit class won't go out with you, it's a pretty good bet that she won't have sex with you, either."

And how is it doing the bidding of unions? The way that you ask the second question demonstrates the (pro-union) premises and myths upon which you proceed. No, it isn't "simply that the government takes the position that nonmembers can be compelled to pay fees to cover the costs of collective bargaining and any other sufficiently direct benefits they receive by being members of the bargaining unit."

It's that the government has taken the position that the unanimous, categorical determination in Ellis doesn't mean what it plainly says (and when you read our Reply brief, you'll see how we demonstrating that "pooling" was, indeed, before the Court in Ellis; the opinion just didn't use union lawyers "magic words"). It's that the government has endorsed the expansion of the expenditures (in this case, extra-unit litigation expenditures of national affiliates) that nonmembers may be forced to subsidize.

If you're going to defend the position of the union and the Admininistration, please do so with specificity. "[O]ther sufficiently direct benefits"? Only if you buy into the union's self-serving rhetoric.

Posted by: James Young | Sep 6, 2008 11:18:49 AM

I just don't agree that any of this is evidence that the government is doing the unions' bidding. At the same time, I'm not sure the administration does much of anyone's bidding. But you are correct in surmising that I might be pro-union. The union movement in this country is responsible for a lot of worker protection that we wouldn't have without concerted effort and collective bargaining power. Unions also have a history of racist and sexist behavior, and some unions have been corrupt. Overall, though, I believe that empowering workers as workers is a good thing even if some individual desires are occasionally subordinated.

Posted by: Marcia McCormick | Sep 6, 2008 7:21:37 PM

I totally agree dude. Bush went out and supported California and the unions in the Chamber of Commerce case earlier this year - that California's law was found not pre-empted by the NLRA.

Wait, that ws the Bizarro Earth case. My bad.

Posted by: Per Son | Sep 7, 2008 8:23:39 AM

Now, now, "Per Son," no one says that the Administration does the union's bidding all of the time. Especially in cases (like Chamber of Commerce v. Brown) where the outcome is all but certain. They aren't, for example, a wholly-owned subsidiary of the AFL-CIO Lawyers Working Group, like the prior Administration.

But those who might have expected this Administration to advance the cause of worker freedom in the Supreme Court when given the opportunity have been sorely disappointed by Paul Clement and his shop.

As for your comment, Marcia, that you "believe that empowering workers as workers is a good thing even if some individual desires are occasionally subordinated," you mean "individual desires" like enjoying the fruits of their labors? Their "individual desires" are already extinguished --- not "occasionally subordinated" --- by monopoly bargaining. Forced union dues merely adds the insult of forced subsidization to the injury of monopoly bargaining.

I would quote Franklin in response: "Those who would surrender freedom for a little temporary security deserve neither freedom nor security."

Posted by: James Young | Sep 7, 2008 4:56:01 PM

Mr. Young:

Personally I am glad the SG is out of the argument, as it will just include reps for each side.

Hopefully, I'll be able to watch the argument.

Mr. Young, just answer this please: how did it feel when you got notified that the Supreme's granted cert? I assume it was an awesome feeling, because you get to argue over something you strongly believe in and have been fighting over for a long time. Did any of the bigwig firms try to take the case from you?

Posted by: Per Son | Sep 8, 2008 11:03:39 AM

Well, "Per Son," that's a nice question. If you get there, and you don't mind surrendering your anonymity, please say hello. Should be a good day to come, as Ted Olson is arguing the first case, and he is certainly (at least among) the best. While I've spoken to Ted a few times at Federalist Society events, I've never seen him argue, so I'm looking forward to it, too.

On that personal note, it was amazing, though I haven't had much time in the interim to contemplate it. Actually, it's the second time I had cert. granted, but the first time (in 2000), cert. was granted, the decision below was vacated, and the case was remanded. So I won, but it was unsatisfactory, as I didn't get to argue. However, my maternal grandparents were still alive, and it was wonderful to be able to tell them that their grandson had just won his first case in the United States Supreme Court.

Perhaps the most interesting aspect was having a conference with the district court judge (in Sacramento) later that same day: when I explained to him what the Court, he interrupted to observe that "Of course, they have standing [he had found, and the Ninth Circuit affirmed, that nonmembers lack standing to challenge an indemnification clause contained in a forced-unionism clause]; it's their money!" My colleague nearly fell off of his chair.

As for this one, it was odd. I called the Court's info line, and it said that no update was available, but that one might be available the next week, and I reported it to our legal director (who has argued four cases before the Court). About 30 minutes later, just for grins, I checked the orders list. It crashed my Adobe reader and Firefox when I tried to search for "Locke." So I rebooted my system, and when I scolled down and saw it, I was in shock. I went to my long-time (nearly 10 years) assistant's desk, leaned over gently, and said "Cert. Granted."

She screamed. And my wife was excited, too. She's never seen me work. She's been holding out for the Supreme Court (hard woman to please!).

To answer your other question, no, none of "the bigwig firms" tried to take the case from us. I have a sneakin' suspicion as to the response of my clients if any had tried, since I have represented them from the outset of the case. I think it would be rather foolish of them to have tried, anyway, since this is our fourteenth case before the Court. I don't think it demonstrates a lack of humility to observe that we are the experts (as one of your colleagues on the union side of things unwisely observed at a preliminary injunction hearing last year).

Posted by: James Young | Sep 8, 2008 5:42:13 PM

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