Dean Erwin Chemerinsky published this article last week on the ABA Journal’s website complaining about the Supreme Court’s decision in Knox v. SEIU. That’s the case in which the Supreme Court said that the union must ask non-members before it takes away their money to run a political campaign. As I explain here, the rule had previously been that people who objected to having their paychecks docked to subsidize union political activities bore the burden of raising an objection and going through an expensive, time-consuming refund process. In Knox, the Court agreed with PLF that this was contrary to long-standing First Amendment precedent, which said that courts must not presume that people mean to give up their expressive freedoms.
There was a time when liberal lawyers believed that laws that infringe on speech and other rights central to the democratic process, should be regarded with skepticism by the courts. In Knox, these concerns should be particularly heightened, since the union was taking non-members’ money in order to run a campaign opposing a California ballot initiative which would have imposed an opt-in requirement so as to protect those same non-members. In other words, the union was forcing people to subsidize a campaign in favor of forcing people to subsidize campaigns! Under the rule of the famous Footnote Four—once regarded as gospel by liberal constitutional lawyers—such efforts to “restrict those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and “curtail the operation of those political processes ordinarily to be relied upon to protect minorities” deserve to be struck down, and the Supreme Court did so in Knox.