Right to Work and Judicial Elections

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.