The right wing effort to defund unions opened a new front at the Supreme Court this morning in the case of Knox v. SEIU, as the five conservative Justices crafted a new constitutional rule that will make it harder for public sector unions to protect workers’ rights. To do this, they violated the Court’s own rules about not addressing an issue that was not before them, in order to destabilize a careful balance established a generation ago by a Supreme Court more respectful of the law.

On one side is a public sector union’s right, as employees’ exclusive collective bargaining representative, to require nonunion employees to pay a fair share of the union’s costs. On the other side is the constitutional limitation on the union’s right to collect fees from dissenting employees for political purposes not germane to the union’s duties as an agent for collective bargaining (“non-chargeable expenses”). (It is a constitutional issue because the contributions are required by law of public sector employees.)

In the 1986 Hudson case, the Supreme Court ruled that a public sector union must annually notify employees of its anticipated expenses for the upcoming year, saying the percentage that is non-chargeable. The union must then give dissenting employees a chance to opt out of paying the non-chargeable percentage.

In this case, SEIU, representing California state employees, imposed a temporary dues increase during the Hudson year in order to raise funds to fight anti-worker initiatives placed on the California ballot. It did not provide an additional opt-out opportunity. Consistent with that year’s Hudson notice, dissenting nonmembers were assessed about half of the temporary dues increase, and they sued.

Seven Justices agreed that SEIU was required to send out a new Hudson notice. But rather than end the case there, the five conservatives chose to place a new obstacle to union funding by addressing a question that was not before them. Specifically, they decided that the existing opt-out system set forth in Hudson “substantially impinge[s] upon the First Amendment right of nonmembers.” Therefore, they ruled, when there is special assessment or dues increase, the union cannot collect any additional dues from non-members unless they affirmatively opt in.

Justice Sotomayor’s concurring opinion, joined by Justice Ginsburg and with Justices Breyer and Kagan agreeing in their dissent, harshly condemned this unwarranted action:

Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution. They did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents [SEIU] did not address such a prospect.

Under this Court’s Rule 14.1(a), “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” …

The majority’s refusal to abide by standard rules of appellate practice is unfair to the Circuit, which did not pass on this question, and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the question the Court decides.

We can never forget that the Roberts Court, in an aggressively political act, asked the parties in Citizens United to argue a new issue not raised in their pleadings, so that the Court would be able to overrule precedent that no one was questioning. When the political prize is tempting enough, the Court’s arch-conservatives enthusiastically reach out for the brass ring. Today, the five arch-conservatives on the Roberts Court might as well have taken off their judicial robes and donned Scott Walker tee-shirts in their zeal to make it harder for unions to protect workers.