“There oughta be a law!” was a syndicated newspaper cartoon that ran from the 1940s through the 1980s. The basic premise involved the characters encountering some perceived misfortune or injustice with the remedy and punchline often being; “there ought to be a law!”
I heard once, though I can’t remember where or who said it, that the 21st Century equivalent of “There oughta be a law!” was “Unconstitutional!” Any policy dispute or perceived injustice in law could be beaten by a simple argument; unconstitutional!
Here in Kentucky, no debate better exemplifies this tendency than the challenging of 2017’s Right to Work law as, you guessed it, unconstitutional.
The economic case for Right to Work (RTW) laws, or laws that prevent unions from negotiating contracts that compel union membership as a condition of employment, is relatively straightforward. A 2018 NERA Economic Consulting report found that private sector employment grew by 27 percent in RTW states between 2001 and 2016, compared to 15 percent in non-RTW states. Additionally, the annual unemployment rate in RTW states was 0.4 percentage points lower than in non-RTW states.
After losing the policy fight, the opponents turned their attention to the courts and soon after its passage in 2017, Kentucky’s Right to Work law quickly found itself challenged on legal grounds.
So when the Kentucky Supreme Court ruled in a 4-3 decision that the law was constitutional, fans of judicial restraint had reason to celebrate. In fact, for those who value the separation of powers, and believe that judges ought to interpret the law rather than serve as “super legislators” should rightly applaud the crescendo point of Justice Laurance VanMeter’s opinion. “In this area of economic legislation, the legislature and the executive branch make the policy, not the courts,” said Justice VanMeter, dealing a deathblow to the idea that the courts could meddle in affairs better left up to elected legislators.
The ruling however, should also give the careful observer some pause. To date, no state’s RTW law has been found to be unconstitutional by an appellate court of last resort, and only a handful of appellate judges who have ruled on RTW cases nation-wide have sided with the idea that Right to Work laws are unconstitutional. One judge on the West Virginia Supreme Court felt their law was unconstitutional. So did one judge on the 7th Circuit Court of Appeals. Yet, three judges on the Kentucky Supreme Court felt this was the case.
That means that 60% of the appellate judges in the whole country who have found RTW laws per se unconstitutional sit on the Kentucky Supreme Court.
As long as that’s the case, the Kentucky legislature can pass as much conservative policy as it would like, and Gov. Matt Bevin can sign it into law, but those who favor the role of super legislator will continue to say, “Unconstitutional!”