For all the heists and scams of the Trump era, perhaps the greatest theft occurred before he even took office. And Mitch McConnell was the perpetrator. “They stole a Supreme Court seat, and they’ve installed union-buster Neil Gorsuch on the bench. And now their investment is paying off,” as Senator Elizabeth Warren said recently.
Indeed it is. So far this year the Court has delivered blow after to blow to workers: Epic Systems Corp. v. Lewis made it far more difficult for workers to use the legal system to remedy abuses. On Monday, the Court upheld racist gerrymanders and gutted antitrust enforcement. Tuesday, the Court upheld Trump’s Muslim ban and blocked a California law that “crisis pregnancy centers” had to provide information about abortions. As Democratic contenders for 2020 are staking out positions like a federal job guarantee and Medicare for All, the threat of a Supreme Court that could reverse progressive legislative accomplishments looms large.
In perhaps the biggest blow to the working class for this term, the Court ruled Wednesday in Janus v. AFSCME that public-sector workers do not have to pay “fair share” union fees to support collective-bargaining activities. The decision went even further than many observers expected by making these fees opt-in, rather than opt-out. This dramatically dims the economic prospects for public-sector workers nationwide, but also delivers a hammer blow to Democrats and progressive politics—as President Trump was unafraid to declare on Twitter following the decision: “Big loss for the coffers of the Democrats!”
David Faris, a professor of politics at Roosevelt University who wrote a book arguing that progressives need to fight back against Republican procedural extremism, said that, while the constitutional basis for Medicare for All is sound, another right-wing justice on the Court could “open up the possibility of overturning crucial decisions from the late ’30s, decisions which finally upheld New Deal reforms. If the constitutional basis of the Social Security Act is overturned, for instance, then Medicare for All becomes impossible too. We’re not that far away from this scenario,” he said. “Federalist Society zealots have openly wanted to bring back the Lochner era for decades.” More broadly, Faris said he fears any progressive change will have to endure years of “both real and frivolous court challenges.”