By David Harsanyi • The Federalist
It’s odd, isn’t it, that so many of the folks who warn us about the authoritarianism of the GOP also happen to support an array of policies that coerce Americans to do things they don’t want to?
Take, for example, the four reliably liberal Supreme Court justices, all of whom believe it’s OK to compel Americans to pay dues to political organizations they disagree with, to coerce them to say things they abhor, and to compel them to create things that undermine their principles.
For some, myself included, the prospects of a court run by people who ignore the Constitution was the best argument for Donald Trump in 2016. The question was, “What’s scarier, a Trump presidency or a progressive Supreme Court?” I imagine the answer is becoming a bit clearer for many conservatives.
In three cases this term — the rulings that stopped the Colorado’s Civil Rights Commission from destroying Jack Phillips’ business over a thought crime, California’s attempt to force people to support abortion, and public-sector unions from continuing their long-standing policy of forcing workers to fund their political activities — the court has handed the Constitution clear wins.
I mean, has there been a bigger win for small-government, real-life conservatives over the past few decades than the Janus v. AFSCME ruling? The decision not only fortifies the First Amendment by explicitly finding compelled speech unconstitutional, but also calls out the Left’s authoritarian political machinery, which has been holding many American communities, school systems, and workers hostage for decades.
“It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment,” Justice Samuel Alito wrote in the majority. “Those unconstitutional exactions cannot be allowed to continue indefinitely.”
The Janus ruling also stipulates that employees must now affirmatively opt-in — rather than having to opt out — of unions before having to pay fees. The court understood that dollars are fungible, and every one of them should be considered a matter of speech.
Certainly, it would not have been the case had Hillary won. We know this by taking a peek at a counterhistory offered by reading the liberal dissents.
“The First Amendment,” writes Justice Elena Kagan, “was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.” The idea that the court should decide who deserves First Amendment protections, or that those protections should be contingent on the vagaries of “democratic governance,” whatever that means, is as corrupt as any of the dumb things Trump has ever said about free expression. The Supreme Court is built to withstand the whims of democracy, of majoritarianism, not to surrender to them. (Then again, Kagan gives away her political game when she worries that “Public employee unions will lose a secure source of financial support.”)
Justice Sonia Sotomayor, in her dissent, accused the majority of weaponizing the First Amendment — an unconscionable position for a person tasked with “faithfully and impartially” discharging the duty to protect the inherent rights of all Americans. The dissenters have perverted the intent of the Founders. It’s none of Sotomayor’s business how we use free expression. It’s her business to protect it.
And in an environment where Americans are increasingly drifting apart ideologically, culturally, and politically on virtually every major issue, gridlock has become the de facto state of affairs in DC, and the court becomes even more important. Whatever Trump’s predilections or beliefs might be, to this point the First Amendment has been strengthened under this presidency.
Don’t get me wrong: Trump’s attacks on the press can be harmful and gratuitous (though, of course, not every tweet critical of CNN is an attack on the foundations of the First Amendment). Yet they are far less consequential than allowing SCOTUS to codify attacks on free expression.
Not that we should forget that we can thank Mitch McConnell for giving Trump the Neil Gorsuch seat. The much-disparaged Senate leader withstood immense political pressure and preposterous attacks when stopping President Obama from stacking the court.
But the president kept his word when it came to the Court. It’s still early in the Trump era, of course, and we really have no idea how the residual political effects of our acute partisan battles or investigations or ugly rhetoric or the often-incompetent presidency will manifest in the long term. Perhaps Trump’s unpopularity will make it harder for originalists to find their way to the Supreme Court in the future. Perhaps not. It’s also true that in no time in modern American history has a president’s disposition and rhetoric conflicted more dramatically with the outcomes of his administration. But that has been a net win for the Constitution.