“Roberts has spent much of his career crusading against voting rights, specifically the Voting Rights Act of 1965, the landmark civil rights law that ended Jim Crow practices disenfranchising Black voters and prohibiting race discrimination of all kinds in elections.
As a young Justice Department lawyer, Roberts fought unsuccessfully to convince President Ronald Reagan to veto an important 1982 amendment to the law, which overturned a previous Supreme Court decision making it very difficult to win Voting Rights Act lawsuits. As a justice, Roberts wrote the Court’s decision in Shelby County v. Holder (2013), which neutralized much of the law. He also joined two other opinions severely weakening the rest of the law — the latter of which, Brnovich v. DNC, was decided on the last day of this term.
The practical impact of this trilogy is that the Voting Rights Act is barely alive. Under Brnovich, for example, states are likely to have carte blanche to roll back early voting and absentee voting, as well as other, similar innovations that became common in the last four decades. And most challenges to the latest wave of Republican voter suppression laws are likely to fail.”
“in a term gravid with extraordinarily aggressive arguments made by right-wing lawyers, conservatives and Republicans had an exceptionally good run. They convinced the Court to hobble the Voting Rights Act, to open a new line of attack on donor disclosure laws, to expand property rights, to attack unions, and to rewrite the rules governing when religious objectors are exempt from the law.
And that’s after just one term with a 6-3 Court. Next term, the Court will hear a case that could overrule Roe v. Wade.”
“Cedar Point is a sign the radical new conservative regime that many Republicans crave and that liberals fear could actually be upon us. The Court fundamentally reshaped much of American property law in Cedar Point. It did so in a party-line vote. And it did so in a case involving labor unions — institutions that are often celebrated by liberals and loathed by conservatives.
The case involves a nearly half-century-old California regulation, which gives union organizers limited, temporary access to farm worksites. Under this regulation, a union may enter such a worksite for up to 30 days at a time, and it may invoke this right up to four times a year. On the days when the union is permitted to enter, it may only speak to the workers for three hours a day — the hour before the start of work, the hour after the end of work, and the workers’ lunch break.
Thus, union organizers are allowed on a farm’s property for a maximum of 120 days a year, and for a total of only three hours per day. And the union also must notify the employer when it wishes to invoke this right.
But the right of unions to enter onto a California farm to organize workers is now in deep trouble. In an opinion penned by Chief Justice John Roberts, the Court held that California’s longstanding regulation violates the Constitution’s “takings clause,” which provides that no one shall have their property taken from them by the government “without just compensation.”
And, in order to reach this result, Roberts rewrites decades of law interpreting that clause.”
“Under the new rule announced in Cedar Point, any law or regulation that “appropriates a right to invade” private property amounts to a per se taking. If California allowed union organizers to enter an employer’s land for a single minute, then California committed a per se taking.
“The right to exclude is ‘one of the most treasured’ rights of property ownership,” Roberts writes. And much of his opinion suggests that any intrusion on this right to exclude amounts to a taking.”
“One problem with Roberts’s expansive view of the takings clause is that it could prevent the government from performing very basic functions, such as health and safety inspections.
Suppose, for example, that a restaurant has a disgusting, rat-infested kitchen that violates numerous local health ordinances. The restaurant’s owners obviously do not want these violations to be discovered, so they refuse to admit any government health inspectors. Under Roberts’s reading of the takings clause, it’s not clear why the restaurant owner should not be allowed to do so — or why it shouldn’t be able to, at the very least, demand compensation from the government before health inspectors can be allowed on their property.
After all, if “the right to exclude is ‘one of the most treasured’ rights of property ownership,” why should an employer be allowed to exclude union organizers but not health inspectors?”
“Roberts’s opinion recognizes that it would be untenable to hold that health and safety inspections violate the Constitution, so he carves out a special rule allowing such inspections to stand. “The government may require property owners to cede a right of access as a condition of receiving certain benefits,” such as a license to operate a business, Roberts writes, so long as that condition “bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property.”
Those are some very large and very vague words, and it’s not entirely clear what it means for an inspection requirement to be roughly proportional to “the impact of the proposed use of the property.” Nor is it clear why, if the government can require restaurants to admit health inspectors as a condition of doing business, it can’t also require that restaurant to admit union organizers as a condition of employing workers.
The Court has simply made a value judgment here. It views health inspections as sufficiently important to justify creating an exception to its new understanding of the takings clause, but it doesn’t view protecting a worker’s right to organize as important enough to justify a similar exception.”
“the Court has revolutionized its understanding of the takings clause. And it did so in an opinion that applies an extremely skeptical rule to pro-union regulation while it simultaneously creates carveouts for regulations that the Court’s conservative majority supports.”
“After an intensive, months-long election, only one-eighth of the workers at Amazon’s Bessemer, Alabama warehouse voted in favor of a union. More than twice as many voted against. Roughly half didn’t vote at all.
The election’s losers are incredulous that they could have fallen short on the merits. Challenges are already underway, accusing Amazon of unfair labor practices such as positioning a mailbox improperly. And to be sure, Amazon appears to have behaved obnoxiously, and perhaps even unlawfully in some instances.
But when nearly 6,000 workers have two months to cast ballots, and the union secures fewer than 750 “yes” votes, the idea that it has what workers want looks a bit ridiculous.”
“Workers have shown that they dislike the hyper-adversarialism and political activism that American unions bring into their workplaces but are eager for more representation, voice, and support than they can achieve individually. What they want, and need, is a middle ground that neither side is offering.
Research has borne this out. In a landmark 1994 survey, Harvard professor Richard Freeman and University of Wisconsin professor Joel Rogers asked more than 2,400 nonmanagement workers whether they would prefer representation by an organization that “management cooperated with in discussing issues, but had no power to make decisions” or by one “that had more power, but management opposed.” Workers preferred cooperation to an adversarial stance by 63 percent to 22 percent, a result that held even among active union members.
In 2017, MIT professor Thomas Kochan conducted a similar survey and found that interest in joining a union had grown and workers wanted a wide range of services that a union could provide to them, including: collective bargaining; health, unemployment, and training benefits; legal assistance; input into work processes; and representation in management decision-making. On the long menu of options, the two that stood out as making workers less likely to join are exact the ones that seem to get union activists most excited: politics and strikes.”
““The fossil fuel industries were unionized in long struggles that were classic labor stories,” said University of Rhode Island labor historian Erik Loomis. “Now, they’re in decline and you have these new industries. But a green capitalist is still a capitalist, and they don’t want a union.”
About 4 percent of solar industry workers and 6 percent of wind workers are unionized, according to the 2020 US Energy and Employment Report. The percentage of unionized workers in natural gas, nuclear, and coal power plants is about double that, around 10 to 12 percent unionized (although still not a huge amount). In addition, transportation, distribution, and storage jobs — which exist largely in the fossil fuel sector — about 17 percent of the jobs are unionized. Still, the solar and wind unionization rates are in line with the albeit very low national rate of unionized workers in the private sector, which is about 6.3 percent.
This is one of the big reasons there’s a real hesitancy on the part of many unions and workers to transition from fossil fuel to renewable jobs: They are worried the jobs waiting for them in wind and solar won’t pay as well or have union protections. This has long been a tension point between environmental groups and labor”
“One town’s police contract guaranteed a retiring lieutenant $121,000 for unused sick time. Another’s promises officers six months pay with no work required as a parting retirement benefit. In another contract, cops get paid $109 an hour for side gigs like monitoring traffic at construction sites.
Despite attempts to rein in police union contracts in New Jersey, costly provisions remain common, an unprecedented analysis by the Asbury Park Press and ProPublica found. The news outlets identified contract clauses throughout the state that protect officer payouts that cost the public hundreds of millions of dollars.”
“By law, unions must represent every worker in a unionized shop, regardless of whether each individual worker joins the union. If a union contract provides that every worker gets a 5 percent raise, for example, that raise must go to everyone in the shop, including workers who choose not to join the union.
This arrangement creates a free-rider problem. If workers receive all the benefits negotiated by a union without having to pay to join the unions, then many workers will elect not to join the union. If too many workers make that decision, the union will be starved of the funds that it needs to operate and will collapse — and then no one will receive the benefits of unionization.
According to a 2021 paper by the Economic Policy Institute’s Larry Mishel, “the union wage premium — the percentage-higher wage earned by those covered by a collective bargaining contract — is 13.6 percent overall.” So workers typically are better off if they work in a unionized shop, even if they have to pay a small percentage of their wages as fees to the union.
Agency fees are a common solution to the free-rider problem. Often, when a union negotiates a contract with an employer, that contract will include a provision allowing the union to charge such fees to nonmembers, which reimburse the union for the cost of providing its services to those nonmembers.
Many states, however, have so-called “right-to-work” laws, which prohibit agency fees. In Janus I, the Supreme Court held that public sector unions are forbidden from charging such fees anywhere in the country. So public sector unions are now under a “right-to-work” regime even in states that reject such laws.”
“Educators’ anxiety is based on reasonable concerns. Covid-19 is a serious illness. And schools are an indoor group setting with the potential to spread infection. But schools, it turns out, with a few basic safety measures, including masks and reasonable distancing, are not a high-risk venue for Covid-19 transmission. In fact, they appear to have far lower rates of the virus than their surrounding communities. Still, some education union leaders are beginning to lay the foundation for schools remaining shuttered into the 2021-22 school year.”
“One sticking point, for example, has been the union’s early and continued insistence that desks remain at least six feet apart at all times. This requirement mathematically determines whether there is enough space for learners in the building. Distancing is absolutely critical to Covid-19 mitigation, but there is no magical threshold that makes six feet the “safe” distance and five feet “dangerous.”
In settings like school, where everyone is wearing a face covering, there really is no measurable difference in risk between being three feet and six feet apart. That is why there is no official guidance from any relevant public health body that mandates six-foot distancing at all times.”
“The union also named a lack of asymptomatic testing for teachers as a major barrier to return to in-person learning. To get kids back to school, we implemented such a routine testing plan, at great cost and logistical effort. We discovered that since testing began in January 2021, the positivity rate among teachers and staff has been approximately 0.15 percent — while cases were surging in the Boston metro area — and our contact tracing efforts have not identified any cases of in-building transmission.
Even so, the union continues to resist a return to full in-person learning. What’s more, the goalpost seems to have shifted again, now to universal vaccination of teachers.”
“last spring, we observed the experiences of other countries like Scotland, Singapore, and France, where schools reopened and masks and social distancing seemed to prevent large-scale transmission.
In the US, epidemiologists compared the timing of school closures to changes in Covid incidence. Some studies found that school closures might have reduced the spread of illness, but the findings are complicated because we were also making other major public health changes at the same time. And overall they failed to find a strong link.
Data and patterns also began to emerge about children’s Covid-19 test results and their exposures. Playdates with friends emerged as the common exposure among the infected; time in school did not.
Still, as reassuring as the data were, they were all indirect. The gold standard to learn if schools can open safely is fairly simple: Open schools, measure Covid incidence, and see what happens. Many US school districts have now done this, and we have the data.
First, researchers in North Carolina published results from 11 school districts and over 100,000 students and staff. Schools in those districts employed mandatory masking and six-foot distancing where feasible, but no major capital improvement to HVAC systems or buildings. In the first quarter of this school year, they found the rate of transmission of Covid in schools was dramatically lower (roughly 1/25) than the level of transmission in the community. Among all of the Covid-19 infections observed in school, the state health department’s tracers found 96 percent were acquired in the community, and there were no documented cases of the virus passing from child to adult in schools — zero.
Second, a similar study followed 17 schools in Wisconsin. Like North Carolina, those schools required masks indoors, three-foot distancing with effort to distance farther whenever feasible, and no major capital improvements. Between August 31 and November 29, with over 4,500 students and 650 staff, they found seven cases of Covid transmission to children and also found no cases of Covid transmission to educators in the buildings. Further, these schools eliminated Covid transmission at the same time that the surrounding community saw a rapid rise in Covid-19 cases.
A third important preprint study analyzes data from two schools in Atlanta. This study is small, but it is important because the schools were conducting routine asymptomatic screening of students, teachers, and staff. In Atlanta, 72 percent of the limited number of transmission events in one school were known to be the result of non-compliance with masking. And again here, there were no cases transmitted from students to teachers.
Sadly, at the same time that we are learning definitively that we can open schools safely and essentially prevent Covid transmission, data are emerging about the real damage being done to children by prolonged remote learning”
“Police unions in general have become the most vocal interest group opposing criminal justice reforms and especially reforms to police discipline and use of force. Historically, they have, unlike most unions, been profoundly conservative institutions that uphold a particular white ethnic, “law and order”-focused variant of right-wing politics. They have been among Donald Trump’s most fervent allies; Kroll spoke at a Trump rally in 2018, and the International Union of Police Associations has already endorsed Trump for reelection.
The foregrounding of police unions’ role in the warping of American law enforcement has also prompted some difficult conversations on the left. The presence of a segment of a union movement that’s unapologetically right-wing and hostile to Black communities has tested the limits of solidarity from more left-wing unionists.
As long as police forces exist, police unions will exist in some form as well, even if just as political pressure groups. It is therefore natural to think that reforming police unions in some way must be part of the broader agenda of changing policing in America. They are among the biggest stakeholders in the way the system works now; without addressing their power, other reforms may never get off the ground.”
“Most police union experts I spoke with, though, fell in the middle: They believe that police unions can be usefully reformed without being abolished.
There are a number of possible models for this kind of reform. The organization Campaign Zero, co-founded by activists DeRay Mckesson and Samuel Sinyangwe, has been a leader in pushing for police union contract transparency; much of the research above relies on contracts they’ve surfaced publicly.
They recommend a bevy of contract changes, most of which involve removing provisions included in many union contracts or state laws known as Law Enforcement Officers’ Bills of Rights (LEOBRs), which provide similar protections to police officers as contracts do but are implemented as state legislation instead. Problematic provisions in contracts and LEOBRs include mandates that delay interrogations of officers (as Rushin highlighted), the ability to appeal to an arbitrator partially chosen by the police union, and bans on investigating misconduct that happened more than 100 days in the past.
Rushin has proposed allowing the public to observe collective bargaining between the police and state governments. That way, the public can exert pressure on city leaders not to yield to police union demands about discipline. A 2017 Reuters investigation found that in a number of cities, such as San Antonio, city leaders have given police unions concessions as an explicit trade-off for not offering high pay or limiting pay cuts. “If that trade-off is publicly visible, that our failure to compensate is causing cities to give significant concessions on discipline,” Rushin notes, then public pressure might force the city to increase police salaries rather than reducing accountability.”
“Suppose that a FedEx deliveryperson pushed you onto the sidewalk, causing a head injury when you fell. The deliveryperson would be liable in a civil suit, and so would FedEx. But it’s different with government. Qualified immunity generally protects police officers and other public employees from lawsuits; meanwhile, a principle called “vicarious liability” protects police departments and city governments from such lawsuits. Fisk argues that Congress should reverse Monell and allow governments to be held liable for police officers’ misconduct.
The most dramatic reform, short of outright abolishing collective bargaining rights for police unions, is one that Harvard’s Sachs suggested sympathy toward and the Boston Globe has editorialized in favor of: limiting police unions to simply bargaining on wages and hours, not on discipline. This change is already the law in Massachusetts. (Fisk argues this would go too far. “There’s two sides to the contract; why are we focused only on what unions are asking for rather than focusing on what cities are asking for?” she says.)
Reforming police unions is hardly the only important task in efforts to reform the police generally. But there is an emerging consensus that something significant has to change in these organizations. If not, they will remain unaccountable lobbies that frustrate even mild efforts to reform police departments and save the lives of unarmed civilians.”
“In 2018, as a gunman murdered 17 students at Marjory Stoneman Douglas High School in Parkland, Florida, Sgt. Brian Miller, a sheriff’s deputy with the Broward County Sheriff’s Office, hid behind his police cruiser, waiting 10 minutes to radio for help. For his failure to act, Miller was fired. The official cause was “neglect of duty.”
Last month, however, Miller was not only reinstated but given full back pay. His 2017 salary was more than $138,000. Miller had challenged his firing, and, as The Miami Herald reports, he had done so with the full backing of his union.”
“This is what police unions do: defend the narrow interests of police at the expense of public safety. They exist to demand that taxpayers pay for dangerous, and even deadly, negligence. And although they are not the only pathology that affects American policing, they are a key internal influence on police culture, a locus of resistance to improvements designed to reduce police violence. To stop bad cops and police abuse, we must tackle police unions.
In case after case, police unions have defended deadly misdeeds committed by law enforcement. In 2014, for example, New York City police officer Daniel Pantaleo put Eric Garner in a chokehold for selling loose cigarettes. As a result of Pantaleo’s chokehold, Garner died. Garner’s last words were, “I can’t breathe.”
The incident, caught on video, helped galvanize the Black Lives Matter movement. A grand jury declined to indict Pantaleo, but five years after Garner’s death, he was fired from the force following a police administrative judge’s ruling that the chokehold was, indeed, a violation of department policy.
Pantaleo had violated his police department’s policy in a way that resulted in the death of a man who was committing the most minor of offenses. Yet when he was finally fired, Patrick Lynch, the president of the Police Benevolent Association, Pantaleo’s union, criticized the city for giving in to “anti-police extremists” and warned that such decisions threatened the ability of city police to do their jobs. “We are urging all New York City police officers to proceed with the utmost caution in this new reality, in which they may be deemed ‘reckless’ just for doing their job,” Lynch said.”
“Forthcoming research out of the University of Victoria’s economics department finds that the introduction of collective bargaining produces somewhat higher compensation for police officers. It does not correlate with a reduction in total crime—but it does eventually correlate with higher numbers of killings by police, especially of minorities.
In other words, the research finds about what you’d expect given a public sector workforce with unions set up to protect police officer compensation while limiting discipline and oversight. Police get paid more, yet the public is no safer—and it’s even at greater risk of violence by police.”
“consider the case of Camden, New Jersey. For decades, the city was among the most violent in the country, plagued by one of America’s highest murder rates and commensurate levels of property crime. In 2012, with the murder rate approaching record highs, The New York Times reported, police acknowledged “that they have all but ceded these streets to crime.” City officials said the police union was to blame. Union contracts made hiring officers prohibitively expensive. The cops on the payroll were being paid too much and they weren’t getting the job done.
So the city made a novel decision: Fire the police. All of them.
That year, Camden began the process of terminating hundreds of officers and hiring a new force initially made up of less expensive, non-union labor, controlled by the county.
It was a decision meant to address both budget and crime problems. Naturally, the police union opposed the plan, saying it was “definitely a form of union-busting.” City officials, the union said, were relying on a reform that was “unproven and untested,” putting faith in an agency that did not yet exist.
By many measures, however, the unproven and untested new police force worked. After disbanding the city police and reorganizing under the county with lower pay, plus adding focus on rebuilding trust with the community (which is among the nation’s poorest), murders declined. The city is still dangerous compared to some others, but there’s been clear progress in terms of reducing crime and improving community relations. Over the weekend, as residents took to the streets to protest disparate and abusive treatment in black communities, Camden police officers marched with the protesters.”
“Unions aren’t the only problem plaguing American police forces; there are plenty of other reforms worth pursuing, from demilitarization to ending qualified immunity. But they have consistently proven to be a force of organized resistance to calmer, safer, less aggressive policing”
“Police are public servants granted enormous power over the citizenry. They are tasked with protecting the public and serving their interests. Police unions, in contrast, are tasked with protecting police and serving their interests—even in direct contravention of serving the public. That distinction makes them a barrier to reforms aimed at improving public safety and increasing oversight of how law enforcement behaves. If union-busting is what it takes to reduce the pernicious influence of today’s police unions on policing, then it’s time to bust some police unions.”