Big Supreme Court victory for labor illustrates awful GOP bind

By Greg Sargent

This news is being widely greeted as a big victory for organized labor, and it is that, but it also neatly illustrates the difficult bind Republicans find themselves in as they continue to refuse to consider Barack Obama’s nominee to the Supreme Court:

The Supreme Court on Tuesday said it was unable to resolve a major challenge to organized labor, and the result was a defeat for a group of California teachers who claim their free speech rights are violated when they are forced to pay dues to the state’s teachers union.

The court said it was split 4 to 4 on the issue, following the death of Justice Antonin Scalia. It was the most important case yet in which the eight-member court was unable to reach a decision.

At oral argument, the court’s conservatives appeared ready to junk a decades-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike….

Conservative groups directly asked the court to overturn a 1977 decision, Abood v. Detroit Board of Education, that favored the unions. That ruling said that states could allow public-employee unions to collect fees from nonmembers to cover the costs of workplace negotiations but not to cover the union’s political activities.

At oral argument, it appeared the groups would get their wish….[But] when the court is evenly split, it affirms the decision of the appeals court that considered it. In this case, the U.S. Court of Appeals for the 9th Circuit said it was bound by the Abood decision and turned down the challenge.

This situation actually illustrates both the reasons why Republicans continue to refuse to hold hearings for Obama nominee Merrick Garland and why this whole standoff represents such a difficult problem for them.

On the one hand, it shows that it makes some sense for Republicans to hold off on considering (or confirming) Garland. After all, if Garland filled Antonin Scalia’s vacant seat, labor probably would have won by five to four. Even if Garland is a moderate and a centrist, the fact of the matter is that putting him on the court would tilt it in a liberal direction in ways that would damage a range of conservative causes. So it makes sense for Republicans to roll the dice and hope a Republican president is elected who can replace Scalia with a conservative.

The problem is that, in the interim, even if Republicans are keeping the court from shifting in a liberal direction by refusing to act on Garland, lower court rulings that conservatives had hoped to overturn may be allowed to stand. That happened today. And it could happen in more high profile cases to come. The Court is set to hear a challenge to an Obamacare contraception-coverage mandate that religious conservatives object to, and a case that will determine how the populations of Congressional districts will be counted. In the latter case, a decision that only voters must be counted — rather than the total number of people — could probably help Republicans. But in both those cases, four-to-four ties will likely sustain lower court rulings that conservatives had hoped to get struck down.

“While Republican opposition to Judge Garland is unsurprising, Republicans may not be happy with the results of an eight-justice court that splits four-to-four, leaving in place liberal lower court decisions,” Brianne Gorod, chief counsel at the liberal-leaning Constitutional Accountability Center, tells me.

One Republican Senator, Susan Collins, is questioning the GOP strategy of inaction on Garland, pointing out that it’s risky: if Hillary Clinton wins the presidency, she could nominate a justice who is more liberal than Garland. This is true, and it will start to look even more risky if Donald Trump tightens his grip on the nomination. But it doesn’t really mean Republicans should feel pressure to act on Garland immediately, because they have the option of holding off temporarily. They can wait to see how the GOP nomination process shakes out, and can always act later to confirm Garland to avert that Hillary scenario, if necessary.

Yet even holding off temporarily could create more problems for Republicans. It has already been well established that GOP Senators who are facing tough reelection campaigns are holding their ground against Garland in hopes of keeping the GOP base engaged behind them. In a sense, Mitch McConnell’s whole strategy of inaction is all about keeping the base revved up in hopes of holding the GOP’s Senate majority. But big news of a deadlocked court (such as we saw today) gives Democrats an added political weapon to use against those vulnerable GOP Senators. Dems can highlight headlines reeking of dysfunction and tie them to broader charges that Republicans are making a mess of basic governing, to undermine vulnerable incumbents among independents and moderates.

All of this could get worse if it becomes more apparent that Trump is going to win the GOP nomination. It could make it politically harder for Republicans to refuse to consider Garland, since their implicit position will be that President Trump should choose the next nominee, while Obama should not. It could make it look more likely that Clinton will be the next president, tempting Republicans to go ahead and confirm Garland already — but that would anger the base, so that, too, constitutes a bind. And while holding firm against him might keep the base behind Republicans, Trump could blow up that plan, too. His nomination could cause millions of GOP voters to stay home; or if the nomination is given to someone else at a contested convention, Trump could go on the warpath against the GOP and do all he can to rupture the base Republicans are counting on.

Bottom line: The only way this ends well for Republicans is if they win the White House. If that doesn’t happen, perhaps in retrospect holding out against Garland in hopes that the base helps save the GOP Senate majority will have proven the least bad option for them. But nor is it a particularly good option, as we’re now seeing.