On the surface, yesterday’s Supreme Court ruling in Cedar Point Kindergarten v. Hassid is just another anti-union ruling by Chief Justice John Roberts, who has presided over the most anti-labor court since the New Deal. In the state of California, there was a rule that farm owners had to allow union organizers access to the farms to speak to their workers. In a 6-3 verdict that broke cleanly along the party lines, Roberts ruled the ordinance was unconstitutional. It’s a terrible decision, but a result that isn’t all that surprising from the court’s Conservatives done everything you can imagine De-unionize America in the service of the interests of the mega-corporations.
The Democratic Party, which allegedly cares about organized labor, has done nothing to protect unions or unionized workers from judicial assault, and they are unlikely to use this case as a rally to rebalance the court and the Preventing six Conservative judges from continuing violating union rights. Conservatives are trying to reset labor laws to the fire level outside the Triangle Shirtwaist Factory, and the Democrats just stand around and watch them burn.
But what should sound all available alarm bells isn’t just the judgment in the Cedar Point KindergartenThat’s how the Conservatives got there. The argument that Roberts and the Conservatives used against union organizers in this case was effectively repurposed from the arguments used by segregationists against civil rights activists. In breathing new life into it, Roberts not only opened the door to ongoing union busting, but also revived long-term discredited views on how real estate owners could use that property as an excuse to deny civil rights across the spectrum.
The constitutional issue at the heart of the case was the protection of the Fifth Amendment from government use of significant domains known in Republican parlance as “revenue,” which is used to make things sound scary. The fifth amendment says that private property should not be used for public use “without fair compensation”. Supreme Court precedents have outlined two different types of government revenue that will trigger compensation: regulatory revenue and per se Revenue.
In general, government income is generated when a law restricts a property owner’s use of their own property. If the government tells me that once a year I have to allow turtle pups to waddle past my house on their way to the sea without my blocking them, that may be an official assumption. I may be entitled to compensation for this even if the government prevents me from enjoying the annual turtle blessing of my property in a soup.
Per se The intake should be a little easier. The government or persons acting under the authority of the government must physically confiscate the property. If the government wants my house to be razed to the ground by the stud farms to build a turtle highway, that’s a per se and I am definitely entitled to market-based compensation for my home.