Welcome to the Liberty Insider.
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This is a program,
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for those of you that had
been watching it regularly,
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you'll know that we feature
religious liberty in the US
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and around the
world with analysis,
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up-to-date
information, and an overview
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that you probably
won't get anywhere else.
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My name is Lincoln Steed,
Editor of Liberty Magazine.
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And my guest on the program,
Professor Bruce Cameron,
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law professor
from Regent University
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in Virginia Beach, isn't it?
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That's right. Yeah.
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It's Virginia Beach.
It's good to be here, Lincoln.
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It sounds almost too...
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there's a holiday or Virginia
Beach, it's like Waikiki.
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But I know
serious business there.
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Come to our law school
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and you can spend
some time at the beach.
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Okay.
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Good. I'll take you up on that.
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But it's not all fun and sand,
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this is some very
serious business effort.
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And I know a
lot of what you deal
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with is labor union issues.
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That's correct.
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You are a Seventh-day Adventist
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and our pioneers Ellen White
in particular had a lot to say
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about the dynamic
of union membership.
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And our religious liberty
department is still concerned
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about it because very often
there's the issue, you know,
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apart from whether or not
unions are good, you know,
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that's the big discussion.
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But should anyone, certainly
a Seventh-day Adventist
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be required to
join or pay union dues?
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And you were telling me that
there was a case recently...
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That's right.
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In the Supreme Court that dealt
with this issue of being forced
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to pay union dues, even if
you're not even participating.
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That's right.
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Well, in fact the
last time that we spoke,
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we talked about 2012 US Supreme
Court decision named Knox,
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which said that a
very high standard
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had to be shown to override
the constitutional rights
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of employees that didn't
want to support labor union.
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And then two
years later, in 2014,
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another case Harris v.
Quinn, US Supreme Court said,
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compulsory union fees
for home healthcare workers
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are unconstitutional.
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So this set a
very good precedent...
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That's right.
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That's right.
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There is precedent, in fact,
both those cases were funded by
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the National Right to
Work Legal Defense Foundation
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in order to set that precedent.
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So what's the
next hill to climb?
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If you want to get rid
of compulsory union fees,
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you have to get rid of
them for all employees.
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And argument,
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according to some
experts is strongest
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when you're dealing
with public employees.
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You see, the Supreme
Court in 1977 had said that
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with regard to compulsory
union fees for public employees
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you couldn't be
required to reimburse the union
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for its political activities,
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but you could be
required to reimburse the union
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for its collective
bargaining activities.
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But the question is,
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isn't collective bargaining
for public employees political?
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I mean, isn't it a political
question that huge pensions
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that are causing
these cities to go bankrupt?
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I mean, isn't this
a political question?
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So in our Harris case,
the Supreme Court said, well,
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public employee, collective
bargain is very political.
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We don't think we've adequately
consider this in the past.
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And so that set the
stage for this next case.
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But, may be I didn't
understand what was at play.
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I thought the union
due was the union due.
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It almost sounded like there
was a question of splitting it
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up into union activities
and political activities.
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Oh, see, that's been the
law for 40 years actually.
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Really? Yes, well...
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So it isn't the union
due per se it's some fee
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to the union in lieu of
some of their activities,
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not to cover everything.
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That's right, let's
talk about the law right now.
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The law as of
this moment universally
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in the United States is that
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no one has to be a
member of the union.
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But with regard to
compulsory union fees,
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if you don't work in
a right to work state,
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which frees you from
compulsive union fees,
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then the fee that you
can be required to pay
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to the union is limited.
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The union dues, let's say
the union dues are $100 a year.
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Obviously, that's
not what they are.
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But of the $100,
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let's say the union spends
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50 percent of its
money on political,
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on ideological activities,
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50 percent of its money
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on collective
bargaining activities.
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Only 50 cents out of the union
dues dollar would be chargeable
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to non members
who say, "I object."
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That's a good
question, I didn't understand,
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I didn't realize that.
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Yes, I mean
this was accomplished
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for public employees in 1977.
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But the 1977 decision
of Abood versus Detroit
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Board of Education
was a mixed decision
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that case also
funded by the National Right
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to Work Legal
Defense Foundation said
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you cannot charge public
employees compulsory fees.
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This Supreme Court at
the time said we disagree
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but we do think,
you cannot charge them
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for political and
ideological purposes.
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That's been the
law up until Harris.
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That's being for ceaseless,
we're all charged taxes
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for political activity.
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Yeah, well, that's
because the labor unions
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are not the sovereign.
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They make it that
distinction confused
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but they're not
the sovereign, right.
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For the king.
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So this case then...
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well, is this settled?
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I mean to say...
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No, so that's at the
stage for US Supreme Court
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granted review in a
case called Friedrichs versus
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California Teachers Association.
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It was actually
raised to the Supreme Court
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after the Harris case.
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I had a case
that I filed in Texas,
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I'd a case I
filed in Massachusetts,
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I was trying to beat
the Friedrich's people
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at the Supreme
Court but they beat me,
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it was a case that was
not funded by the foundation
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although we were consulting,
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our lawyers were
consulting on it.
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But it raised the
issue, our compulsory union fee
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is constitutional at
all for public employees,
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and they also raised the issue
do non members have to object
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in order to keep the union from
taking their money for politics
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So they looked wonderful,
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the Supreme
Court granted to exert,
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granted review.
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Briefs your file
including we file a brief.
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All argument, we were concerned
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that Justice Scalia
might not rule with us,
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and Justice Kennedy
might not rule with us.
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But in all argument
both of them said things,
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they seem to
absolutely commit them
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to being on our side
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which is to strike
down compulsory union fees.
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Unfortunately Justice Kennedy
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didn't live a
healthy enough lifestyle
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and he managed to die.
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Well, he wasn't that young.
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He wasn't that young but I
hope to live longer than he did.
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He managed to die
after oral argument
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but before the
decision was handed down,
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the result was we lost
our five-four majority.
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The Supreme Court
spilt four-four on it.
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The case had lost below
and so it was now lost, right.
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So it's lost on
a split decision?
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Right.
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A split decision
is not presidential,
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the lower court decision stands.
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So the lower court
decision was negative.
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But it could come up
again in another form.
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Well, it can, it
could come up again.
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It came up actually right away
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because the lawyers
for Rebecca Friedrichs,
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the plaintiff in that
case filed a motion to rehear
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and we'd hoped it
would be held over
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to the next Supreme Court term,
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but just three weeks
ago the Supreme Court
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when its last
actions for this could term,
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it's just over.
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I denied rehearing,
so the case is over.
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Now remember I said, I
was in a race with them.
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Well, I still have a case
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pending in
Massachusetts as a follow up
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and more importantly
I have a case in Texas,
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before The United States Court
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of Appeals for
the Fifth Circuit.
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When I was in the
airport yesterday,
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I got a note that
I'd lost the Texas case.
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So...
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Explain something for our
viewers, and perhaps even,
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again I might find something
that I thought wrongly.
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I don't believe most people
generally let alone our viewers
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quite understand
how things line up
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before the Supreme Court?
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Well...
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Oh, what that means, how?
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If this is the constitutional,
even where you go from there.
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How the things,
I think got in situ
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but I'd like you to
explain what's the process
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whereby something gets there
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because not all things
end up with the Supreme Court.
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Oh, okay.
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I wasn't sure if you're
asking me about procedure.
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I can absolutely tell
about. It is about procedure.
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About the procedure.
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The law today is changed,
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but the law today
is the Supreme Court
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takes only cases
that it wants to take.
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That's what I
wanted to say. Right.
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And so justices decide
which cases they will decide
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and which they will not decide.
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But they can't take a case
that hasn't come before them.
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Well, here's the way...
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In a way I'm challenging
this legislating from the bench
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they don't have a wide gambit,
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they pretty much have to
cherry pick from the things
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that work up
through the system, right?
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That's right, they can.
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For example, pick out a
case in the United States
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and say, "Oh, we wanna go here.
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That one
depending on where it is."
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The way it works is, if
you have a final decision
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of a state Supreme
Court or a final decision
00:10:32.59\00:10:36.46
of the United
States court of appeals,
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the federal court system.
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The lawyers who are
dissatisfied with the result
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apply to the US
Supreme Court for review.
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It's called
applying for certiorari.
00:10:47.38\00:10:50.35
If the court grants certiorari,
it review its case...
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It's Latin but
what does it mean?
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I don't know.
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And how to pronounce
it is even less known.
00:10:58.39\00:11:00.99
One of my, the guy whose
office is next to me at a region
00:11:01.02\00:11:04.66
once wrote this funny article
because the Supreme Court
00:11:04.69\00:11:09.30
justices pronounced
certiorari differently.
00:11:09.33\00:11:14.90
And it's chaos,
00:11:14.94\00:11:18.17
Justice Ginsberg called
cert just to make it easy.
00:11:18.21\00:11:22.58
Yeah, that's I usually hear too.
00:11:22.61\00:11:24.58
I knew it was certiorari.
00:11:24.61\00:11:25.95
Yeah, it's a grant to
the lower court to say,
00:11:25.98\00:11:30.29
we're going to hear your case.
00:11:30.32\00:11:32.45
Very few cases are granted
review by the Supreme Court
00:11:32.49\00:11:37.39
and so it's that pool
that you're talking about cases
00:11:37.43\00:11:41.86
where lawyers coming
there from States Supreme Court
00:11:41.90\00:11:45.30
or the federal court of appeals.
00:11:45.33\00:11:48.47
So the lawyers have the ability
to steer the court a little bit
00:11:48.50\00:11:51.84
to picking up
one of the, you know,
00:11:51.87\00:11:54.14
their concern from
the available pool.
00:11:54.18\00:11:56.34
That's right. If
you're not brain dead.
00:11:56.38\00:11:58.48
You're not going to ask
the court to review a case
00:11:58.51\00:12:02.25
in unsettled area of the law
where you think you gonna lose.
00:12:02.28\00:12:06.15
I mean, you know,
00:12:06.19\00:12:07.52
presumably there is some
strategy involved in this.
00:12:07.56\00:12:10.53
You send up cases that you
hope they will grant review on
00:12:10.56\00:12:14.20
and you hope have some
reasonable hope that you'll win
00:12:14.23\00:12:18.73
Now one another thing
and I've heard Justice Scalia
00:12:18.77\00:12:21.60
speak about this
but we should say it,
00:12:21.64\00:12:24.24
when the Supreme
Court makes a decision
00:12:24.27\00:12:27.21
as far as the court
system that's the end of it.
00:12:27.24\00:12:29.31
Well.
00:12:29.34\00:12:30.78
Yes, yes.
00:12:30.81\00:12:32.51
It's the highest
court. That is...
00:12:32.55\00:12:34.38
That's just because they
could legislate from the bench
00:12:34.42\00:12:37.65
and make a decision.
00:12:37.69\00:12:39.69
What's the
redress or the next step
00:12:39.72\00:12:43.89
if there is to be
one in the government?
00:12:43.93\00:12:47.20
Well, there are
couple of things,
00:12:47.23\00:12:49.63
the United States
Supreme Court is the final word
00:12:49.66\00:12:52.27
when it comes to
decisions of the state
00:12:52.30\00:12:55.94
and federal judiciary
00:12:55.97\00:12:57.61
with regard to the
federal constitution.
00:12:57.64\00:13:00.18
That's because if
you don't follow them,
00:13:00.21\00:13:03.48
they'll reverse you later on.
00:13:03.51\00:13:05.15
So they have the final word.
00:13:05.18\00:13:06.92
Can you influence that?
00:13:06.95\00:13:08.95
Well, Congress sometimes
says, we think you were wrong.
00:13:08.98\00:13:12.72
For example...
00:13:12.75\00:13:14.09
So they can
legislate something that...
00:13:14.12\00:13:15.62
Maybe, well, this is
an interesting point.
00:13:17.53\00:13:19.66
Yes, when the Supreme Court
00:13:19.69\00:13:21.30
decides on
constitutional grants,
00:13:21.33\00:13:24.43
I mean this
interpretation may define
00:13:24.47\00:13:28.04
what the correct
constitutional view on the laws.
00:13:28.07\00:13:31.71
I don't think the legislators
could then legislate again
00:13:31.74\00:13:35.81
because it's a hopeless cause,
but something, some decisions
00:13:35.84\00:13:40.58
that aren't on the constitution
per se but wrong law,
00:13:40.62\00:13:46.05
it seems to me the
court may be make a decision,
00:13:46.09\00:13:48.99
but then the
legislators can make another run
00:13:49.02\00:13:51.46
it didn't pass a law that might
thwart the court in some ways.
00:13:51.49\00:13:56.56
Let me give you an example...
00:13:56.60\00:13:57.93
I heard Scalia say that.
00:13:57.97\00:13:59.30
Will help clarify this.
00:13:59.33\00:14:00.67
The legislature can then enact
and again the Supreme Court
00:14:00.70\00:14:05.71
then could in theory again say
00:14:05.74\00:14:08.58
that something's
unconstitutional.
00:14:08.61\00:14:10.28
They could.
00:14:10.31\00:14:11.65
The Supreme Court's last
word with regard to whether
00:14:11.68\00:14:14.62
or not something
is unconstitutional
00:14:14.65\00:14:16.38
under the federal constitution,
but let me give you an example.
00:14:16.42\00:14:19.45
Justice Scalia wrote
an opinion a decades ago.
00:14:19.49\00:14:22.49
It was a horrible opinion,
00:14:22.52\00:14:24.13
it's called Smith
versus Employment Division
00:14:24.16\00:14:27.36
and it essentially said that
00:14:27.40\00:14:31.13
when it comes to the
free exercise of religion,
00:14:31.17\00:14:34.70
it is not like other
First Amendment freedoms
00:14:34.74\00:14:37.11
of speech and association.
00:14:37.14\00:14:39.64
After that decision was
handed down, Congress passed
00:14:39.67\00:14:42.98
the Religious
Freedom Restoration Act
00:14:43.01\00:14:44.95
which was in a time...
00:14:44.98\00:14:46.31
They needed to because
that was a bad decision.
00:14:46.35\00:14:48.62
We need to talk a
little bit more on that.
00:14:48.65\00:14:50.12
Let's take a break.
00:14:50.15\00:14:51.49
Stay with us though,
00:14:51.52\00:14:52.85
we'll be back and carry on this
00:14:52.89\00:14:54.22
very interesting Supreme
Court constitutional discussion.
00:14:54.26\00:14:58.49