On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time.
In Knox v. Service Employees International Union, the five—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—reached out to decide a question that was not argued or briefed; their opinion all but begs right-wing advocacy groups and public employers to use its emerging First-Amendment jurisprudence to take down public-employee unions and in essence find a Southern-style “right to work” law in the Constitution. In the days when right-wingers favored judicial restraint, this might have been called “judicial activism.”
It is the Court’s Scott Walker moment.
Even better, on an actual issue regarding the first amendment, the court just said “ehh, whatevs”:
In an 8-0 vote, justices concluded the Federal Communications Commission cannot enforce its current policies against “fleeting” expletives and nudity on over-the-air programs, both live and scripted. The agency had levied hefty fines on all four major broadcasters beginning nearly a decade ago.
The court’s ruling was narrow, as the justices declined to address whether the regulations violate free-speech protections guaranteed under the First Amendment. But it does establish important guidelines the government must follow when monitoring explicit content on the airwaves.
Ruling in favor of free-speech, in this case, would have upset the social cons, so time for a narrow ruling. When it comes to union busting, though, full speed ahead and let’s rule on stuff that isn’t even in the case. But, you know, IANAL.