The West Virginia Supreme Court just upheld the WV Right to
Work law. This prevents an employer (and
a union) from requiring union membership as a condition of employment. Twenty-seven states have Right to Work laws,
and the rest don’t. In the other
twenty-three, union membership or “agency fees” may be required as a condition of
employment. (“Agency fees” are the
amount of dues used for collective bargaining, but not for other
political/advocacy activities.) (The
decision is Morrisey, Atty. General, and State of WV v. WV AFL-CIO, No. 19-0298,
available at courtswv.gov.)
The WV decision was authored by Justice Evan Jenkins. He is a former Republican congressman and,
predictably, he is a conservative. In the
opinion, he follows the United States Supreme Court Janus decision, which says
that Right to Work laws are constitutional.
I’ve never met Justice Jenkins.
A “concurring opinion” was filed by Justice John
Hutchinson. A “concurring opinion” is
one that says that the writer agrees with the result but not necessarily the
reasoning. Justice Hutchinson is running
for the Supreme Court whenever the State gets around to having a primary. He garnered an endorsement from the State’s
largest union, the AFL-CIO. But after
concurring in the result, the Union has pulled the endorsement. The United Mine Workers just pulled their endorsement,
too.
The process of endorsing a candidate is protected by the
First Amendment. It may be distasteful to
endorse for a judicial office, but it’s still protected. (That’s the fundamental beauty of the First
Amendment: If somebody does something
that pisses you off, it’s pointless to scream “You can’t say that!”)
Apparently, Justice Hutchinson is much in sympathy with the
Unions. His opinion expresses the value of
unionization over American history for the American worker. I probably have met Justice Hutchinson – he was
in law school in a different class while I was there – but I haven’t talked to
him and wouldn’t recognize him in a line-up.
The Unions withdrew his endorsement because he didn’t rule
for them. They have a right to do
that. But they are punishing him (to the
extent that a lack of endorsement is a punishment) because he is upholding his
oath to apply the law. In this case, the
United States Supreme Court has ruled that Right to Work is constitutional
where it’s been passed. (The WV
Constitution is a touch more generous as to rights as the US Constitution, but
not in any relevant point.) The Unions require
for an endorsement that this judge decide what he cannot do and uphold his
oath: Decide directly contrary to law.
So unions are withdrawing endorsements from someone who has
philosophical agreement with them. That
seems self-defeating.
Me? I’ll irk
everyone. I like Right to Work laws with
agency fees. On the other hand, were I a
judge, I’d vote with the majority. The
answer is not one for the Courts. It’s
one for the legislature and – obviously – the majority of the legislature
currently wants Right to Work.
People expect to much from the Courts and expect the Courts
to make policy decisions even if the legislative branch has done something
contrary but Constitutional. Courts call
balls and strikes. If you love the A’s,
and the A’s pitcher throws outside, should you call it a ball or a strike? Judges should call a ball even if they
personally regret it.
Well, I don’t get to vote in West Virginia. Not my problem.
