In June 2014, the court ruled against the union scheme in Harris. The home health aides were not “full-fledged public employees,” the 5-4 majority said. Alito wrote that opinion too. For people who work in the home, he said, “labor peace” is not important. He cited a provision of the NLRA that bars unions for those in “domestic service.” (He didn’t mention that the provision was added by Jim Crow-era Southern lawmakers who wanted no federal meddling with their black butlers, cooks, and maids.)
The court had not yet gutted union rights for “full-fledged” public workers, however. The apparent chance to do so came in the 2015 term, with a case called Friedrichs v. California Teachers Association. California defended its statute before the court, and 21 other states and the District of Columbia filed a brief supporting the union. At oral argument, however, Republican lawyer Michael Carvin, representing the objectors, assured the court that these states didn’t really want to win the case: “They don't care about how robust or effective this union is,” he said with a straight face. “Indeed, if anything, they don't want them to be effective, because nobody wants a strong bargaining partner that's going to drive up public expenditures.”
Carvin could peddle this eyewash because, at his clients’ insistence, there had been no trial, and there was thus no evidence about the actual benefits, or lack of benefits, from the “fair share” scheme. The anti-union forces had told the courts below to hurry up and rule against them, so they could get to the Supreme Court and win. Friedrichs was to real litigation roughly what the stabbing of Caesar was to parliamentary procedure.
Before the court could announce its decision, however, Justice Antonin Scalia died. In March 2016, the court announced that the surviving justices had tied 4-4, meaning that the four remaining conservatives were probably ready to take down unions even for “full-fledged” public employees. The tie, however, meant that the union victory in the Ninth Circuit was affirmed. Public employee unions seemed to have dodged their death foretold.
Then Senate Majority Leader Mitch McConnell stepped forward to claim Scalia’s seat as property of the Republican Party. In the spring of 2017, Neil Gorsuch took the seat his party had withheld from President Barack Obama’s nominee, Merrick Garland. Not long after he took his seat, another “case” materialized, again without a record or indeed a pretense of anything new other than a change in the court’s personnel.
The court has not yet scheduled oral argument. If only García Márquez were living, perhaps he would be able to do justice to the solemn, farcical tone we can expect.
“Fatality makes us invisible,” García Márquez’s nameless lawyer notes. This spring is likely to see a killing that will happen in plain sight, with the long-sharpened knives demurely hidden under the black robes of the law.