Participants: Lincoln Steed (Host), Bruce N. Cameron
Series Code: LI
Program Code: LI000330A
|
00:26 Welcome to the Liberty Insider.
00:30 This is a program, 00:31 for those of you that had been watching it regularly, 00:33 you'll know that we feature religious liberty in the US 00:36 and around the world with analysis, 00:39 up-to-date information, and an overview 00:42 that you probably won't get anywhere else. 00:44 My name is Lincoln Steed, Editor of Liberty Magazine. 00:47 And my guest on the program, Professor Bruce Cameron, 00:50 law professor from Regent University 00:53 in Virginia Beach, isn't it? 00:55 That's right. Yeah. 00:56 It's Virginia Beach. It's good to be here, Lincoln. 00:58 It sounds almost too... 01:00 there's a holiday or Virginia Beach, it's like Waikiki. 01:05 But I know serious business there. 01:07 Come to our law school 01:09 and you can spend some time at the beach. 01:11 Okay. 01:12 Good. I'll take you up on that. 01:14 But it's not all fun and sand, 01:17 this is some very serious business effort. 01:21 And I know a lot of what you deal 01:23 with is labor union issues. 01:26 That's correct. 01:27 You are a Seventh-day Adventist 01:29 and our pioneers Ellen White in particular had a lot to say 01:33 about the dynamic of union membership. 01:36 And our religious liberty department is still concerned 01:39 about it because very often there's the issue, you know, 01:43 apart from whether or not unions are good, you know, 01:45 that's the big discussion. 01:46 But should anyone, certainly a Seventh-day Adventist 01:50 be required to join or pay union dues? 01:54 And you were telling me that there was a case recently... 01:57 That's right. 01:59 In the Supreme Court that dealt with this issue of being forced 02:02 to pay union dues, even if you're not even participating. 02:05 That's right. 02:06 Well, in fact the last time that we spoke, 02:08 we talked about 2012 US Supreme Court decision named Knox, 02:13 which said that a very high standard 02:16 had to be shown to override the constitutional rights 02:19 of employees that didn't want to support labor union. 02:22 And then two years later, in 2014, 02:24 another case Harris v. Quinn, US Supreme Court said, 02:28 compulsory union fees for home healthcare workers 02:32 are unconstitutional. 02:34 So this set a very good precedent... 02:36 That's right. 02:37 That's right. 02:39 There is precedent, in fact, both those cases were funded by 02:41 the National Right to Work Legal Defense Foundation 02:44 in order to set that precedent. 02:47 So what's the next hill to climb? 02:49 If you want to get rid of compulsory union fees, 02:52 you have to get rid of them for all employees. 02:55 And argument, 02:58 according to some experts is strongest 03:02 when you're dealing with public employees. 03:05 You see, the Supreme Court in 1977 had said that 03:09 with regard to compulsory union fees for public employees 03:13 you couldn't be required to reimburse the union 03:15 for its political activities, 03:17 but you could be required to reimburse the union 03:19 for its collective bargaining activities. 03:22 But the question is, 03:23 isn't collective bargaining for public employees political? 03:28 I mean, isn't it a political question that huge pensions 03:32 that are causing these cities to go bankrupt? 03:35 I mean, isn't this a political question? 03:38 So in our Harris case, the Supreme Court said, well, 03:43 public employee, collective bargain is very political. 03:48 We don't think we've adequately consider this in the past. 03:52 And so that set the stage for this next case. 03:56 But, may be I didn't understand what was at play. 03:59 I thought the union due was the union due. 04:03 It almost sounded like there was a question of splitting it 04:06 up into union activities and political activities. 04:10 Oh, see, that's been the law for 40 years actually. 04:13 Really? Yes, well... 04:14 So it isn't the union due per se it's some fee 04:17 to the union in lieu of some of their activities, 04:20 not to cover everything. 04:21 That's right, let's talk about the law right now. 04:24 The law as of this moment universally 04:27 in the United States is that 04:29 no one has to be a member of the union. 04:32 But with regard to compulsory union fees, 04:35 if you don't work in a right to work state, 04:38 which frees you from compulsive union fees, 04:40 then the fee that you can be required to pay 04:44 to the union is limited. 04:46 The union dues, let's say the union dues are $100 a year. 04:49 Obviously, that's not what they are. 04:51 But of the $100, 04:53 let's say the union spends 04:55 50 percent of its money on political, 04:57 on ideological activities, 04:58 50 percent of its money 05:00 on collective bargaining activities. 05:02 Only 50 cents out of the union dues dollar would be chargeable 05:07 to non members who say, "I object." 05:09 That's a good question, I didn't understand, 05:11 I didn't realize that. 05:12 Yes, I mean this was accomplished 05:14 for public employees in 1977. 05:19 But the 1977 decision of Abood versus Detroit 05:22 Board of Education was a mixed decision 05:25 that case also funded by the National Right 05:27 to Work Legal Defense Foundation said 05:29 you cannot charge public employees compulsory fees. 05:34 This Supreme Court at the time said we disagree 05:38 but we do think, you cannot charge them 05:40 for political and ideological purposes. 05:43 That's been the law up until Harris. 05:47 That's being for ceaseless, we're all charged taxes 05:49 for political activity. 05:51 Yeah, well, that's because the labor unions 05:54 are not the sovereign. 05:55 They make it that distinction confused 05:58 but they're not the sovereign, right. 06:00 For the king. 06:03 So this case then... 06:09 well, is this settled? 06:11 I mean to say... 06:12 No, so that's at the stage for US Supreme Court 06:15 granted review in a case called Friedrichs versus 06:18 California Teachers Association. 06:21 It was actually raised to the Supreme Court 06:23 after the Harris case. 06:24 I had a case that I filed in Texas, 06:27 I'd a case I filed in Massachusetts, 06:29 I was trying to beat the Friedrich's people 06:32 at the Supreme Court but they beat me, 06:35 it was a case that was not funded by the foundation 06:40 although we were consulting, 06:42 our lawyers were consulting on it. 06:44 But it raised the issue, our compulsory union fee 06:49 is constitutional at all for public employees, 06:52 and they also raised the issue do non members have to object 06:57 in order to keep the union from taking their money for politics 07:00 So they looked wonderful, 07:04 the Supreme Court granted to exert, 07:07 granted review. 07:09 Briefs your file including we file a brief. 07:11 All argument, we were concerned 07:14 that Justice Scalia might not rule with us, 07:17 and Justice Kennedy might not rule with us. 07:20 But in all argument both of them said things, 07:23 they seem to absolutely commit them 07:26 to being on our side 07:28 which is to strike down compulsory union fees. 07:31 Unfortunately Justice Kennedy 07:34 didn't live a healthy enough lifestyle 07:36 and he managed to die. 07:38 Well, he wasn't that young. 07:41 He wasn't that young but I hope to live longer than he did. 07:45 He managed to die after oral argument 07:47 but before the decision was handed down, 07:50 the result was we lost our five-four majority. 07:55 The Supreme Court spilt four-four on it. 07:59 The case had lost below and so it was now lost, right. 08:04 So it's lost on a split decision? 08:05 Right. 08:07 A split decision is not presidential, 08:10 the lower court decision stands. 08:13 So the lower court decision was negative. 08:15 But it could come up again in another form. 08:17 Well, it can, it could come up again. 08:21 It came up actually right away 08:22 because the lawyers for Rebecca Friedrichs, 08:25 the plaintiff in that case filed a motion to rehear 08:30 and we'd hoped it would be held over 08:32 to the next Supreme Court term, 08:34 but just three weeks ago the Supreme Court 08:37 when its last actions for this could term, 08:41 it's just over. 08:42 I denied rehearing, so the case is over. 08:45 Now remember I said, I was in a race with them. 08:49 Well, I still have a case 08:50 pending in Massachusetts as a follow up 08:54 and more importantly I have a case in Texas, 08:59 before The United States Court 09:01 of Appeals for the Fifth Circuit. 09:02 When I was in the airport yesterday, 09:05 I got a note that I'd lost the Texas case. 09:09 So... 09:11 Explain something for our viewers, and perhaps even, 09:15 again I might find something that I thought wrongly. 09:19 I don't believe most people generally let alone our viewers 09:23 quite understand how things line up 09:27 before the Supreme Court? 09:29 Well... 09:30 Oh, what that means, how? 09:33 If this is the constitutional, even where you go from there. 09:37 How the things, I think got in situ 09:39 but I'd like you to explain what's the process 09:42 whereby something gets there 09:44 because not all things end up with the Supreme Court. 09:46 Oh, okay. 09:47 I wasn't sure if you're asking me about procedure. 09:49 I can absolutely tell about. It is about procedure. 09:51 About the procedure. 09:52 The law today is changed, 09:55 but the law today is the Supreme Court 09:57 takes only cases that it wants to take. 10:00 That's what I wanted to say. Right. 10:01 And so justices decide which cases they will decide 10:05 and which they will not decide. 10:07 But they can't take a case that hasn't come before them. 10:09 Well, here's the way... 10:11 In a way I'm challenging this legislating from the bench 10:14 they don't have a wide gambit, 10:17 they pretty much have to cherry pick from the things 10:20 that work up through the system, right? 10:21 That's right, they can. 10:23 For example, pick out a case in the United States 10:26 and say, "Oh, we wanna go here. 10:27 That one depending on where it is." 10:29 The way it works is, if you have a final decision 10:32 of a state Supreme Court or a final decision 10:36 of the United States court of appeals, 10:39 the federal court system. 10:40 The lawyers who are dissatisfied with the result 10:44 apply to the US Supreme Court for review. 10:47 It's called applying for certiorari. 10:50 If the court grants certiorari, it review its case... 10:54 It's Latin but what does it mean? 10:56 I don't know. 10:58 And how to pronounce it is even less known. 11:01 One of my, the guy whose office is next to me at a region 11:04 once wrote this funny article because the Supreme Court 11:09 justices pronounced certiorari differently. 11:14 And it's chaos, 11:18 Justice Ginsberg called cert just to make it easy. 11:22 Yeah, that's I usually hear too. 11:24 I knew it was certiorari. 11:25 Yeah, it's a grant to the lower court to say, 11:30 we're going to hear your case. 11:32 Very few cases are granted review by the Supreme Court 11:37 and so it's that pool that you're talking about cases 11:41 where lawyers coming there from States Supreme Court 11:45 or the federal court of appeals. 11:48 So the lawyers have the ability to steer the court a little bit 11:51 to picking up one of the, you know, 11:54 their concern from the available pool. 11:56 That's right. If you're not brain dead. 11:58 You're not going to ask the court to review a case 12:02 in unsettled area of the law where you think you gonna lose. 12:06 I mean, you know, 12:07 presumably there is some strategy involved in this. 12:10 You send up cases that you hope they will grant review on 12:14 and you hope have some reasonable hope that you'll win 12:18 Now one another thing and I've heard Justice Scalia 12:21 speak about this but we should say it, 12:24 when the Supreme Court makes a decision 12:27 as far as the court system that's the end of it. 12:29 Well. 12:30 Yes, yes. 12:32 It's the highest court. That is... 12:34 That's just because they could legislate from the bench 12:37 and make a decision. 12:39 What's the redress or the next step 12:43 if there is to be one in the government? 12:47 Well, there are couple of things, 12:49 the United States Supreme Court is the final word 12:52 when it comes to decisions of the state 12:55 and federal judiciary 12:57 with regard to the federal constitution. 13:00 That's because if you don't follow them, 13:03 they'll reverse you later on. 13:05 So they have the final word. 13:06 Can you influence that? 13:08 Well, Congress sometimes says, we think you were wrong. 13:12 For example... 13:14 So they can legislate something that... 13:17 Maybe, well, this is an interesting point. 13:19 Yes, when the Supreme Court 13:21 decides on constitutional grants, 13:24 I mean this interpretation may define 13:28 what the correct constitutional view on the laws. 13:31 I don't think the legislators could then legislate again 13:35 because it's a hopeless cause, but something, some decisions 13:40 that aren't on the constitution per se but wrong law, 13:46 it seems to me the court may be make a decision, 13:49 but then the legislators can make another run 13:51 it didn't pass a law that might thwart the court in some ways. 13:56 Let me give you an example... 13:57 I heard Scalia say that. 13:59 Will help clarify this. 14:00 The legislature can then enact and again the Supreme Court 14:05 then could in theory again say 14:08 that something's unconstitutional. 14:10 They could. 14:11 The Supreme Court's last word with regard to whether 14:14 or not something is unconstitutional 14:16 under the federal constitution, but let me give you an example. 14:19 Justice Scalia wrote an opinion a decades ago. 14:22 It was a horrible opinion, 14:24 it's called Smith versus Employment Division 14:27 and it essentially said that 14:31 when it comes to the free exercise of religion, 14:34 it is not like other First Amendment freedoms 14:37 of speech and association. 14:39 After that decision was handed down, Congress passed 14:43 the Religious Freedom Restoration Act 14:44 which was in a time... 14:46 They needed to because that was a bad decision. 14:48 We need to talk a little bit more on that. 14:50 Let's take a break. 14:51 Stay with us though, 14:52 we'll be back and carry on this 14:54 very interesting Supreme Court constitutional discussion. |
Revised 2016-08-22