4 ms·

An Extremely Consequential Supreme Court Decision Slipped Under the Radar

45 points by 3131s 8y ago

bassman9000 8y ago
gutting of public sector unions Stopped reading there. Mandatory funding of the Dem party is not gutting of unions.
- lemoncucumber 8y ago
  From the article that that text links to: > Unions say that reasoning is flawed. Nonmembers are already entitled to refunds of payments spent on political activities, like advertising to support a political candidate. > Collective bargaining is different, the unions say, and workers should not be free to reap the benefits of such bargaining without paying their fair share of the costs.
  - ars 8y ago
    I've always wondered: Can I choose to bargain for myself, and not have the union do it? Best as I can tell, the answer is: No. The union forces me to pay them to bargain for me. That is unethical. > should not be free to reap the benefits Every single article on the subject always implies that there are benefits. What if I feel they are actually drawbacks? An easy test: If they were actually benefits people would chose to use them, no? So let people work under union contracts, or on their own, as they chose. But you'll never see a union suggest that, will you? They always want to force people to "gain the benefits".
    - pwinnski 8y ago
      To your first point, non-union companies allow, in fact require each person to bargain for themselves. Generally the power imbalance at a reasonably large company means that employees accept what they're offered, because their only alternative is to quit and be replaced easily. This is the reason that groups of workers organize to form unions in the first place. Game theory suggests that each person should want to avoid paying union dues, and yet have everyone else pay theirs, so that the union negotiates good rates for all, including them. The obvious outcome of voluntary dues, then, is for each person to eventually realize this and stop paying their own dues, so that the union collapses, shifting all power back to the employer and making employment worse for all. Humans are short-term thinkers, though, so that would be nigh-inevitable in most cases. Eventually, see point one again. The mandatory dues are an attempt to stop the several-year cycle of shifting back and forth between a union and non-union shop, I believe.
      - eesmith 8y ago
        I'll add a concrete example. My dad worked for a TV station. Of the 5 VHF stations in town, one was public TV, three were network, and one was independent. One of the other stations was union. My dad's company was not. The owner of his company did not want the union. The owner kept the union out by paying everyone $1 more than their counterparts in the union station. My dad thought this was great. He got the benefits of the union - higher wages - without paying union dues. I look at it and think about how Dad could have gotten higher wages by being represented by a stronger union. Union power, like most things, is non-linear. A bigger union can pay for better negotiators than a small union can. That's a simple economy of scale - a larger union can have dedicated, full-time lawyers, for example, who stay on top of the laws and potential changes to the law. When the owner died, and the station got bought out by a private equity firm, the firm did the usual round of layoffs, and it sold off the company into parts. A union might have been able to fight some of those layoffs. But there was no union. But when he boasted about how he made more because he was non-union, such alternatives and futures were out-of-sight/out-of-mind. As you say, "Humans are short-term thinkers".
    - eesmith 8y ago
      Let's say you work for the movie industry. The union requires that union members only work on union productions. If a union member works on a non-union production then they are kicked out of the union. Most people want to be in the union, which means most productions are unionized, even though the employer does not require union membership, the union cannot penalize the employer, and hiring a non-union member is not illegal. Do you consider that arrangement to be ethical? If it's unethical, what is the basis by which you consider it ethical to force unionized employees to continue work with someone who is not a member of the union, instead of letting them quit their job? I know this isn't what you asked, but it gets to the heart of the issue - unions are based on the free association right of employees to quit, and their free speech right to protest. Current union power in the US is based on a compromise. Some union practices are banned, but in exchange they are also given some powers. For example, union members are not allowed to participate in 'wildcat strikes', that is, they cannot strike without permission of the union. On the other hand, unions are allowed to seek the monopoly right to negotiate on the behalf of all covered workers, including non-union ones. I can well understand what people can think it's unethical to force people to be represented by the union, even if it's not wanted. But ethics are not so simple. I strongly disagree with the Taft-Hartley Act, and the various so-called "Right-To-Work" laws, IMO correctly called "Right-To-Work-For-Less" laws. I think wildcat strikes should not be illegal, just like I think jurisdictional strikes, closed shops, monetary donations by unions to federal political campaigns, and the other practices prohibited by Taft-Hartley should not be illegal. More importantly, I can't see how any ethics which requires people be allowed to negotiate on their own doesn't also end up allowing many union practices which are now banned. Can you explain to me why wildcat strikes should be banned?
yourduskquibble 8y ago
There is a LOT of nuance in every Supreme Court case and this author either doesn't understand it, or chooses not to; and both of those options are dangerous to helping the public better understand the reasoning behind any decision handed down by the Supreme Court. > in their quest to utterly dominate the global political economy > featuring Justice Neil Gorsuch rather than Judge Merrick Garland > Supreme Court rulings like the lifeline given to the practice of gerrymandering, the endorsement of Trump’s Muslim travel ban, the gutting of public sector unions, and the defense of bakers who don’t want to serve gay people To me, there is extremely biased (political) language throughout the entire piece.
- ve55 8y ago
  The article demonstrates an unfortunately narrow view of supreme court cases - seeing them as something that should constantly side on a certain moral answer to the object-level question (a specific case), rather than something that upholds important (or at the very least, consistent) terminal values on the meta-level. Similar to how some people decide to side against freedom of speech when it starts to benefit their opponent more than it helps them, even though a matter like that should be decided on a higher principle than "someone says things I wish they wouldn't be allowed to say". As far as this article goes I'm not sure I buy some of what the author is saying, partly due to the language they use, but also due to a lack of evidence and sufficient information in some areas. We'll have to wait and see.
- kyrra 8y ago
  Not sure why you are being down voted. For people down voting, let's look at some of the rulings. 1) gay marriage and the baker. This was a 7-2 ruling that basically set zero precedent. It just ruled that the council that ruled on the case originally was extremely biased in their ruling. 2) unions: only 28 states have forced union dues for collective bargaining. As well, the Federal government does not allow forced union dues. As an example of a union that exists without the protection of forced dues: the postal service union. Public unions aren't dead, but will need to try harder to keep their members now. The federal unions have shown that they can still exist without forced dues. 3) travel ban: while this law was the third attempt at it, and was rooted in some very horrible rhetoric from Trump, the judges that ruled in favor of it to reaffirm that the president has the executive power to do such. The majority was very clear they were not happy with his actions, but the law is written as such to allow him to do what he did here.
jblow 8y ago
The Supreme Court is just interpreting the law. If you don’t like their interpretation, amend the law so that it’s clear. If you aren’t able to get that done, maybe it’s because a lot of people disagree with you about what the law should be. I am not much educated in this particular issue, but I have to say the language of this blog post led me to doubt that the author is a credible source of information.
- fzeroracer 8y ago
  Saying that the 'Supreme Court is just interpreting the law' is a bad way of excusing some of the more terrible decisions they've handed down over the past few months. With this particular case though most of the lawyers and law podcasts I follow haven't touched upon it so I can't say I'm particularly knowledgeable about it either. However I would say it's fair to look at any decisions with extreme scrutiny going forward.
  - 3131s 8y ago
    What I understood as the significance of this ruling is that it establishes a different precedent for companies that are considered to participate in "two-sided markets" in relation to anti-trust law. I would be curious to hear some commentary on the interview below that discusses this ruling, maybe it would have made for a better submission: https://www.youtube.com/watch?v=ovqjj_hNAYw https://www.youtube.com/watch?v=ovqjj_hNAYw
    - eesmith 8y ago
      You can also read Breyer's dissent, at PDF p25 (as the PDF counts it) of the decision, available at https://www.supremecourt.gov/opinions/17pdf/16-1454diff_6579.pdf https://www.supremecourt.gov/opinions/17pdf/16-1454diff_6579... . It is not opaque bafflegab.
- slededit 8y ago
  As the court becomes increasingly politicized this line of thinking becomes less of an explanation. 5-4 decisions along party lines do not inspire confidence in the court as an independent branch merely interpreting the law. Further the fact that we consider justices to have party alliance at all is a huge step back from the independence of the court. While what you say is the intent. In practice the Supreme Court has become another legislative branch. At times applying tortuous logic to achieve desired outcomes. Both parties have benefited from this at times, but the rule of law is the biggest loser.
mnemotronic 8y ago
I know some local artists and a gas station that tack on an extra fee if customer pays with a CC. They're just trying to cover the costs imposed by Amex, Visa etc. Does this decision make that illegal?
- alphabettsy 8y ago
  No. The article does a pretty good job explaining how this applies. Amex has long forbid retailers from discouraging the use of their cards by customers even though the fees have usually been higher for merchants.
- Camillo 8y ago
  > They're just trying to cover the costs imposed by Amex, Visa etc. LOL, no. Those extra fees are _way_ higher than what CC companies charge for the transaction. They are not trying to make up for the charges and break even, they are trying to steer the customer to using cash, because they can evade taxes that way. When a small shop insists on cash, they are evading taxes, 100% of the time.
- DrScump 8y ago
  Not necessarily illegal under criminal law (e.g. in CA), but it is generally a violation of their merchant agreement with the processor.
XalvinX 8y ago
"In a 5-4 ruling along party lines " I wonder if anyone else finds this disturbing? I thought the Supreme Court was supposed to be beyond partisan politics. Why would "party lines" have anything to do with this case, or is it some kind of coincidence? And which party has more reason to help credit card companies, and why? I hate America sometimes. All that shit we learned in civics class was just idealistic propaganda if it all comes down to party lines.

45 points by 3131s 8y ago

bassman9000 8y ago

gutting of public sector unions Stopped reading there. Mandatory funding of the Dem party is not gutting of unions.

lemoncucumber 8y ago
From the article that that text links to: > Unions say that reasoning is flawed. Nonmembers are already entitled to refunds of payments spent on political activities, like advertising to support a political candidate. > Collective bargaining is different, the unions say, and workers should not be free to reap the benefits of such bargaining without paying their fair share of the costs.
- ars 8y ago
  I've always wondered: Can I choose to bargain for myself, and not have the union do it? Best as I can tell, the answer is: No. The union forces me to pay them to bargain for me. That is unethical. > should not be free to reap the benefits Every single article on the subject always implies that there are benefits. What if I feel they are actually drawbacks? An easy test: If they were actually benefits people would chose to use them, no? So let people work under union contracts, or on their own, as they chose. But you'll never see a union suggest that, will you? They always want to force people to "gain the benefits".
  - pwinnski 8y ago
    To your first point, non-union companies allow, in fact require each person to bargain for themselves. Generally the power imbalance at a reasonably large company means that employees accept what they're offered, because their only alternative is to quit and be replaced easily. This is the reason that groups of workers organize to form unions in the first place. Game theory suggests that each person should want to avoid paying union dues, and yet have everyone else pay theirs, so that the union negotiates good rates for all, including them. The obvious outcome of voluntary dues, then, is for each person to eventually realize this and stop paying their own dues, so that the union collapses, shifting all power back to the employer and making employment worse for all. Humans are short-term thinkers, though, so that would be nigh-inevitable in most cases. Eventually, see point one again. The mandatory dues are an attempt to stop the several-year cycle of shifting back and forth between a union and non-union shop, I believe.
    - eesmith 8y ago
      I'll add a concrete example. My dad worked for a TV station. Of the 5 VHF stations in town, one was public TV, three were network, and one was independent. One of the other stations was union. My dad's company was not. The owner of his company did not want the union. The owner kept the union out by paying everyone $1 more than their counterparts in the union station. My dad thought this was great. He got the benefits of the union - higher wages - without paying union dues. I look at it and think about how Dad could have gotten higher wages by being represented by a stronger union. Union power, like most things, is non-linear. A bigger union can pay for better negotiators than a small union can. That's a simple economy of scale - a larger union can have dedicated, full-time lawyers, for example, who stay on top of the laws and potential changes to the law. When the owner died, and the station got bought out by a private equity firm, the firm did the usual round of layoffs, and it sold off the company into parts. A union might have been able to fight some of those layoffs. But there was no union. But when he boasted about how he made more because he was non-union, such alternatives and futures were out-of-sight/out-of-mind. As you say, "Humans are short-term thinkers".
  - eesmith 8y ago
    Let's say you work for the movie industry. The union requires that union members only work on union productions. If a union member works on a non-union production then they are kicked out of the union. Most people want to be in the union, which means most productions are unionized, even though the employer does not require union membership, the union cannot penalize the employer, and hiring a non-union member is not illegal. Do you consider that arrangement to be ethical? If it's unethical, what is the basis by which you consider it ethical to force unionized employees to continue work with someone who is not a member of the union, instead of letting them quit their job? I know this isn't what you asked, but it gets to the heart of the issue - unions are based on the free association right of employees to quit, and their free speech right to protest. Current union power in the US is based on a compromise. Some union practices are banned, but in exchange they are also given some powers. For example, union members are not allowed to participate in 'wildcat strikes', that is, they cannot strike without permission of the union. On the other hand, unions are allowed to seek the monopoly right to negotiate on the behalf of all covered workers, including non-union ones. I can well understand what people can think it's unethical to force people to be represented by the union, even if it's not wanted. But ethics are not so simple. I strongly disagree with the Taft-Hartley Act, and the various so-called "Right-To-Work" laws, IMO correctly called "Right-To-Work-For-Less" laws. I think wildcat strikes should not be illegal, just like I think jurisdictional strikes, closed shops, monetary donations by unions to federal political campaigns, and the other practices prohibited by Taft-Hartley should not be illegal. More importantly, I can't see how any ethics which requires people be allowed to negotiate on their own doesn't also end up allowing many union practices which are now banned. Can you explain to me why wildcat strikes should be banned?

yourduskquibble 8y ago

There is a LOT of nuance in every Supreme Court case and this author either doesn't understand it, or chooses not to; and both of those options are dangerous to helping the public better understand the reasoning behind any decision handed down by the Supreme Court. > in their quest to utterly dominate the global political economy > featuring Justice Neil Gorsuch rather than Judge Merrick Garland > Supreme Court rulings like the lifeline given to the practice of gerrymandering, the endorsement of Trump’s Muslim travel ban, the gutting of public sector unions, and the defense of bakers who don’t want to serve gay people To me, there is extremely biased (political) language throughout the entire piece.

ve55 8y ago
The article demonstrates an unfortunately narrow view of supreme court cases - seeing them as something that should constantly side on a certain moral answer to the object-level question (a specific case), rather than something that upholds important (or at the very least, consistent) terminal values on the meta-level. Similar to how some people decide to side against freedom of speech when it starts to benefit their opponent more than it helps them, even though a matter like that should be decided on a higher principle than "someone says things I wish they wouldn't be allowed to say". As far as this article goes I'm not sure I buy some of what the author is saying, partly due to the language they use, but also due to a lack of evidence and sufficient information in some areas. We'll have to wait and see.
kyrra 8y ago
Not sure why you are being down voted. For people down voting, let's look at some of the rulings. 1) gay marriage and the baker. This was a 7-2 ruling that basically set zero precedent. It just ruled that the council that ruled on the case originally was extremely biased in their ruling. 2) unions: only 28 states have forced union dues for collective bargaining. As well, the Federal government does not allow forced union dues. As an example of a union that exists without the protection of forced dues: the postal service union. Public unions aren't dead, but will need to try harder to keep their members now. The federal unions have shown that they can still exist without forced dues. 3) travel ban: while this law was the third attempt at it, and was rooted in some very horrible rhetoric from Trump, the judges that ruled in favor of it to reaffirm that the president has the executive power to do such. The majority was very clear they were not happy with his actions, but the law is written as such to allow him to do what he did here.

jblow 8y ago

The Supreme Court is just interpreting the law. If you don’t like their interpretation, amend the law so that it’s clear. If you aren’t able to get that done, maybe it’s because a lot of people disagree with you about what the law should be. I am not much educated in this particular issue, but I have to say the language of this blog post led me to doubt that the author is a credible source of information.

fzeroracer 8y ago
Saying that the 'Supreme Court is just interpreting the law' is a bad way of excusing some of the more terrible decisions they've handed down over the past few months. With this particular case though most of the lawyers and law podcasts I follow haven't touched upon it so I can't say I'm particularly knowledgeable about it either. However I would say it's fair to look at any decisions with extreme scrutiny going forward.
- 3131s 8y ago
  What I understood as the significance of this ruling is that it establishes a different precedent for companies that are considered to participate in "two-sided markets" in relation to anti-trust law. I would be curious to hear some commentary on the interview below that discusses this ruling, maybe it would have made for a better submission: https://www.youtube.com/watch?v=ovqjj_hNAYw https://www.youtube.com/watch?v=ovqjj_hNAYw
  - eesmith 8y ago
    You can also read Breyer's dissent, at PDF p25 (as the PDF counts it) of the decision, available at https://www.supremecourt.gov/opinions/17pdf/16-1454diff_6579.pdf https://www.supremecourt.gov/opinions/17pdf/16-1454diff_6579... . It is not opaque bafflegab.
slededit 8y ago
As the court becomes increasingly politicized this line of thinking becomes less of an explanation. 5-4 decisions along party lines do not inspire confidence in the court as an independent branch merely interpreting the law. Further the fact that we consider justices to have party alliance at all is a huge step back from the independence of the court. While what you say is the intent. In practice the Supreme Court has become another legislative branch. At times applying tortuous logic to achieve desired outcomes. Both parties have benefited from this at times, but the rule of law is the biggest loser.

mnemotronic 8y ago

I know some local artists and a gas station that tack on an extra fee if customer pays with a CC. They're just trying to cover the costs imposed by Amex, Visa etc. Does this decision make that illegal?

alphabettsy 8y ago
No. The article does a pretty good job explaining how this applies. Amex has long forbid retailers from discouraging the use of their cards by customers even though the fees have usually been higher for merchants.
Camillo 8y ago
> They're just trying to cover the costs imposed by Amex, Visa etc. LOL, no. Those extra fees are _way_ higher than what CC companies charge for the transaction. They are not trying to make up for the charges and break even, they are trying to steer the customer to using cash, because they can evade taxes that way. When a small shop insists on cash, they are evading taxes, 100% of the time.
DrScump 8y ago
Not necessarily illegal under criminal law (e.g. in CA), but it is generally a violation of their merchant agreement with the processor.

XalvinX 8y ago

"In a 5-4 ruling along party lines " I wonder if anyone else finds this disturbing? I thought the Supreme Court was supposed to be beyond partisan politics. Why would "party lines" have anything to do with this case, or is it some kind of coincidence? And which party has more reason to help credit card companies, and why? I hate America sometimes. All that shit we learned in civics class was just idealistic propaganda if it all comes down to party lines.