Tidal Wave of Anti-Right to Work Judicial Activism
Just a few years ago, a number of vociferous champions of
forced unionism were openly contemplating the effective destruction of every
state Right to Work law in the country by Big Labor judicial activists on a
future U.S. Supreme Court.
For example, in April 2016, former American Federation of
Teachers (AFT/AFL-CIO) Deputy Director of Organizing Shaun Richman publicly
gloated, in writing, about the potential impact of International Union of
Operating Engineers (IUOE) v. Wasden, a lawsuit that was then pending
before a federal judge in Idaho:
“The result could be that all right-to-work laws are
nullified — and sooner than you might imagine.”
A few months after Mr. Richman made his Wasden pitch
in the Chicago-based socialist publication In These Times, Donald Trump,
an avowed Right to Work supporter and advocate of judicial restraint, was
elected as America’s 45th President.
With federal judicial appointments suddenly in Mr. Trump’s
hands for the next four years, efforts to kill Right to Work in the courts appeared
to have been derailed.
However, in 2019, they are back on track.
One More Big Labor Judicial Activist on the High Court Could
Still Tip the Balance
At the time Big Labor partisans like Shaun Richman were
openly speculating about a possibly imminent “nullification” of all state Right
to Work laws, there were only eight justices sitting on the U.S. Supreme Court,
rather than the usual nine, as a consequence of the then-recent death of
Justice Antonin Scalia.
Four of those High Court members — Justices Breyer,
Ginsburg, Kagan and Sotomayor — so consistently sided with Big Labor on
controversial workplace-policy matters that it seemed very possible they would
swallow the Wasden plaintiffs’ outrageous claims regarding the supposed
impermissibility of Right to Work laws under the Fifth Amendment if they heard
Last summer, after Trump appointee Neil Gorsuch had joined
the court and made it clear he would not go along with pro-forced unionism
judicial activism, IUOE union lawyers withdrew Wasden.
But Justices Breyer, Ginsburg, Kagan and Sotomayor all
remain on the Supreme Court today, and all evidently remain just as committed
to assisting Big Labor by twisting the law as they ever were.
“The unexpected election of Donald Trump as President only
temporarily set back the anti-Right to Work scheme by Harvard law professor Ben
Sachs, the Wasden plaintiffs’ counsel of record, and other union
lawyers,” said National Right to Work Committee President Mark Mix.
“One more Big Labor judicial activist on the High Court
could still tip the balance and make Wasden-like litigation a viable
strategy once again.
“And a news article published in the New York Times
on June 8 shows how union lawyers and their allies are already laying the
groundwork for a Big Labor judicial takeover after 2020.”
Big Labor and Its Cohorts Won’t Be Making ‘Their Recommendations
Times Washington correspondent Carl Hulse reported on
“Building a Bench,” a secretive initiative spearheaded by virulent Right to
Work opponent Nan Aron, the president of the Washington, D.C.-based Alliance
According to Mr. Hulse, along with the Alliance for Justice,
a number of labor union officials in addition to other heads of “liberal
advocacy groups” are “underwriting and supporting” the Building a Bench
The focus of this project is to “recommend possible
successors” for federal judges, including Supreme Court justices, who retire or
pass away after 2020.
The Building a Bench list of potential judicial appointees
is intended to be a “guide” for a future, pro-forced unionism presidential
In stark contrast to the Federalist Society, the legal organization (advocating a judicial philosophy consistent with the Right to Work principle) that helped then-candidate Donald Trump compile a list of potential U.S. Supreme Court nominees during his 2016 campaign, the parties involved in the Building a Bench project “do not intend to make their recommendations public.”
Union Bosses Need a Judicial ‘Hail Mary’ Play
Mr. Mix commented: “With the leadership of the National
Right to Work Committee, five new state Right to Work laws have been adopted
and taken effect, just since 2012.
“A majority of states now have Right to Work laws. And
thanks to the Supreme Court’s 2018 ruling in Janus, argued successfully
by Right to Work attorney Bill Messenger, public employees in all 50 states are
now protected from forced union financial support.
“Big Labor needs a judicial ‘Hail Mary’ play. And that could
indeed happen, depending on the outcome of the 2020 elections.”