A Sobering Reminder to Unions on the Critical Importance of Supreme Court Appointees

President Trump is looking for a surefire conservative for the Supreme Court. For all the escalating rancor, this round to replace the late Justice Antonin Scalia could be the prelude to a more consequential battle. The possibility of a second Supreme Court vacancy in the near future is subtly affecting the strategy of the Republican Trump team in the final stages of selecting a candidate and of Democratic opponents girding for what could be years of political turmoil surrounding the composition of America’s highest court.

Scalia, who died last February, was a rigid conservative on social issues so Trump’s replacement would likely be a wash. But a Trump successor to either of the two eldest justices — liberal Ruth Bader Ginsburg, who will turn 84 in March, or centrist-conservative Anthony Kennedy, turning 81 in July — could truly transform the law in America.

How the Fate of Unions Fell Into The Hands of a Single Man

 

In Commonwealth v. Hunt, (1842), an American legal case in which the Massachusetts Supreme Court ruled that the common-law doctrine of criminal conspiracy did not apply to labor unions. Until then, workers’ attempts to establish closed shops had been subject to prosecution. Chief Justice Lemuel Shaw asserted, however, that trade unions were legal and that they had the right to strike or take other steps of peaceful coercion to raise wages and ban nonunion workers.

The case stemmed from a demand by the Boston Journeymen Bootmakers’ Society that an employer fire one of its members who had disobeyed the society’s rules. The employer, fearing a strike, complied, but the dismissed employee complained to the district attorney, who then drew an indictment charging the society with conspiracy. The Boston Municipal Court found the union guilty.

Justice Shaw, hearing the case on appeal, altered the traditional criteria for conspiracy by holding that the mere act of combining for some purpose was not illegal. Only those combinations intended “to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means” could be prosecuted.

Shaw, in effect, legalized the American labor union movement by this decision.

Let’s hope that the inevitable Democratic show of force on the first nomination serves as a warning to Trump not to put up an uncompromising conservative for a more consequential opening.

YOUR TURN

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