November 10, 2016 by Connor D. Wolf
Republican Donald Trump’s victory Tuesday night might mean right-to-work was saved nationally from being overturned by the courts.
The U.S. Supreme Court has remained split since the passing of Justice Antonin Scalia on Feb. 13. Labor unions have prepared lawsuits that could overturn right-to-work nationally if another progressive was added to the court. Trump has promised to appoint a constitutionally conservative justice, meaning the law will likely survive legal challenges.
“If the Supreme Court leaned left then there is a chance that a circuit split, which likely happens in one of the cases between Wisconsin, West Virginia and Idaho may have allowed the unions to overturn right-to-work across the country,” Mackinac Center Labor Policy Director F. Vincent Vernuccio told InsideSources.
Democrats and labor unions generally disagree with right-to-work laws. The policy outlaws mandatory union dues or fees as a condition of employment. Democratic nominee Hillary Clinton didn’t reveal exactly who she wanted to appoint to the court, but it would have likely been a more progressive nominee.
“President Obama’s nominee Merrick Garland usually sided very heavily with unions,” Vernuccio said. “If you do have an activist court, they may be able to push the envelope.”
Garland will not have the chance to fill the empty seat as Republican leadership in the Senate made a gamble to block his nomination and hope the next president would appoint someone more conservative. That bet now seems to have paid off with Trump’s win. Vernuccio notes that unions were likely banking on getting a more activist justice. Unions could appeal their lower court losses in the hopes of eventually making it to the highest court.
“That was the whole reason the unions were bringing the cases in the circuits that they were bringing the cases in,” Vernuccio said. “They wanted a split.”
Wisconsin, West Virginia and Idaho all had union challenges to their stateside right-to-work laws. Federal law has allowed states to decide whether or not to enact the policy for several decades. The law has been upheld over that time, but a Supreme Court loss could set a precedent that would doom it nationally.
“The Idaho case may have been their best chance because that would eventually go to the ninth circuit,” Vernuccio said. “If the ninth circuit ruled for the unions in Idaho, then yes, that would have created a circuit split that may have been a question that the Supreme Court wanted to review, and if it was a left leaning court, possibly could have decided to overturn right-to-work.”
The AFL-CIO is the largest coalition of labor unions in the country at roughly 12.5 million members. The union and its state-based affiliates have been at the forefront of the stateside lawsuits challenging right-to-work. The law, however, has been able to withstand numerous lawsuits and ballot measures since Florida first enacted it in 1944.
There are currently 26 states that have decided to enact right-to-work. West Virginia became the most recent state to enact the law this past year. Those opposed argue it allows workers to free-ride off the benefits unions offer, while opponents contest it’s about freedom of association and giving people the right to choose.
The AFL-CIO and its local affiliates did not respond to a request for comment by InsideSources.