A Second Trump Term Just Got Way More Likely Thanks to the Supreme Court

A historic decision against unions will hurt workers and could sap Democrats of political power for a generation.

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Jun 27 2018, 4:02pm

Photo by Olivier Douliery/Bloomberg via Getty Images

If you're a Democrat or a fellow traveler on the broader left, so many tragic, painful and unprecedented things have already happened under Donald Trump's presidency that you might forget we're not even halfway through this thing. Thanks to a monster Supreme Court ruling against unions that came down Wednesday, even that forecast is suddenly looking way too optimistic.



In yet another 5-4 decision along sharply ideological lines, the US's highest court held that public (a.k.a. government) employees can't be required to help pay the cost of bargaining union contracts. Not only will that make it harder for all workers to get decent wages and benefits—they'll have fewer resources to extract concessions from management—but it could punch Trump's ticket for a second term while setting organized labor and Democrats back for a whole generation.

The case, Janus v. AFSCME, centered on an Illinois child welfare worker named Mark Janus who sued the union representing him and other state employees because he had to pay a $45 fee each month that went toward the cost of collective bargaining despite not being a union member. No one made him actually join the union, and the money—called "agency" or "fair share" fees—was not used for explicitly political activity. The reason he had to pay was that courts have long agreed workers who benefit from collective bargaining should have to contribute to that process even if they weren't union members. Otherwise, a lot of people would presumably choose not to chip in, and these free riders would risk disrupting "labor peace," which is to say they would leech off the hard work of labor organizers and foment discord between workers and management.

But Justice Neil Gorsuch, who was appointed to the court by Trump, sided with the other longtime conservative voices on the Court and deemed the minor inconvenience of the fee—which, to be clear, also benefits people like Janus through collective bargaining—a violation of his First Amendment rights. The idea is that giving any money to a union means helping an inherently political entity; in this case that entity was a labor union that also worked on behalf of Democrats.

What the decision means in practice is that "right to work," the conservative euphemism for the notion that you shouldn't be forced to join a union or pay dues to work a job, now applies to the public sector, the last remaining part of the American economy where unions remain strong. More than a third of government workers in the US belong to labor unions, compared to only about 6.5 percent of workers at private firms. The former figure has held relatively steady since the late 70s, even as many private unions have seen their numbers dwindle and wages go terrifyingly stagnant across the American economy.

"The decline of unionization over the past generation has been a primary driver of economic inequality in the US, and the one place that has sort of stood up in the face of pretty fierce de-unionization has been the public sector," Josh Bivens, director of research at the left-leaning Economic Policy Institute, told me. "This [case] is sort of a laser [trained] right at that."

Now unions have to get workers to voluntarily pay for collective bargaining, a campaign they've been working on for some time in anticipation of this decision. Suffice it to say that is going to be an uphill battle—and is obviously not an ideal fight to be waging when the labor movement is also trying to help the Democrats retake Congress and, eventually, unseat Trump. The sort of fees Janus objected to can't be used to help Democrats—or anyone—win elections. But by forcing unions to work harder to fund their non-political operations, the conservative justices on the Supreme Court have effectively kneecapped them.

"That's diverting attention from things unions would normally do, which is get-out-the-vote and efforts to organize during elections," Celinda Lake, a prominent Democratic pollster, told me of unions' frantic efforts to recoup lost fees by getting people to opt-in to paying them.

Calling the decision a "very big deal" for national politics, she noted that it coming down now is especially important long-term because national and local districts will be redrawn—or "reapportioned"—after the next census. But we could be seeing the impact of weaker unions struggling to advocate on behalf of workers as soon as this fall, and certainly two years from now.

"It makes 2018 somewhat harder. I think it makes 2020 even more [difficult]," Lake told me.

Perhaps the most terrifying picture of how badly this could go for Democrats comes courtesy of an academic paper published earlier this year. Examining so-called "right to work" laws and how unions altered American politics between 1980 and 2016, they found places with the anti-union measures in place cut the Democratic share of the presidential vote by 3.5 percentage points. They also found turnout went down between 2 and 3 percent. Among other reasons, this was because the laws cut the flow of cash to Democratic campaigns by sapping them of resources, made it less likely for voters to be contacted by organized labor, and even appeared to make it less likely for non-elites (a.k.a. working-class people) to run for office.

Unions don't just help workers bargain together for better pay and benefits, though of course that's their primary purpose. They also can change workplace culture and the political consciousness of their members. "They have a really big effect on how people think about politics and even how they construct their identities," Alexander Hertel-Fernandez, a Columbia political scientist who co-authored the study, told me. "That sets them apart even from traditional advocacy groups that are mainly about collecting checks and making campaign contributions. Unions of course do a lot of that—they are huge campaign donors—but they also have this grassroots element to them that is pretty significant. It's hard to think of another organization on the left that plays that kind of role. On the right, I would say the most comparable organizations are the churches or the National Rifle Association."

That means that no matter what happens in 2018 and 2020, the country will almost certainly be less hospitable to left-wing populism and grassroots progressive appeals in the years to come. In fact, Hertel-Fernandez pointed to evidence suggesting trade unions may have helped keep some white men from embracing the far right in Europe. And in the short-term, the prognosis is ugly for the left. "This creates another obstacle for Democrats to retake the House or even have a shot at the Senate," Hertel-Fernandez told me.

After all, despite Democrats' focus on socially liberal suburbs in recent years, unions are still a key wellspring of the Party's support and muscle and energy in big cities. Demographic changes won't rescue the party overnight (as we saw in 2016). And as we hurtle toward 2020, Trump will be able to point to everything from a massive corporate tax cut to low unemployment to palpably pro-business Supreme Court decisions to generate good will—and huge troves of campaign cash— from his donors.

"If you look at decisions like this... and combine it with some of the poll numbers, the strength of the GOP, he's not simply plummeting politically at this point," Julian E. Zelizer, a Princeton professor of history and public affairs, told me. "There are many reasons Republicans could not be confident or not optimistic but truly believe they have a shot at winning the White House again with him at the top of ticket. I think that's just reality."

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