By John Thompson.

 Linguist Geoff Nunberg announced his word of the year on NPR’s Fresh Air, and he nailed it. Nunberg’s choice is “Gig.” For over a century, “gig was a slang term for a musician’s date or engagement.” In the 1950s, hipsters and the Beats used the term for “any job you took to keep body and soul together while your real life was elsewhere.” Nunberg explains, “A gig was a commitment you felt free to walk away from as soon as you had $50 in your pocket.”

Nunberg explains that it was easy to embrace such a gig when a person had access to a “‘real job’” which was “permanent, well-paid and with benefits.” Thanks to the New Deal, strong unions and the postwar boom, he recalls, the 1950s and 1960s’ were “America’s moment.” Now, some Millennials refer to their jobs as gigs. Some do so because they have the “luxury reserved for people who can pretend they don’t need one [a job].” Most young workers still need careers, but gigs are often the best they can get. Working people must cobble “a livelihood cleaning apartments, delivering groceries and doing other people’s laundry.”

The U.S. Supreme Court is supposed to be the opposite of a gig.  American constitutionalism was founded on a commitment to deeper, time-proven principles of law and justice.  “America’s moment” was not shared by everyone, but the Warren Court was devoted to turning American democracy into more than a gig for the privileged. It extended American rights to all, regardless of race, religion, or wealth. Other justices opposed the broad construction philosophy of liberals such as Earl Warren and they made the case that judicial activism went too far. But, too many of today’s conservatives are treating the law of the land as a gig, as a quick path to advancing the interests of the very people who have created a “gig economy.”

As a former legal historian, I understand the gravity of the charge that some in today’s U.S. Supreme Court majority are subordinating their timeless duties to “hyping the new economic order.” I’m not saying that all of the conservatives believe the same.  I’m saying that many are crafting legal arguments to justify their predetermined opinions. Some may still be trying to root out the last vestiges of liberal activism, while others seem influenced by organized pressure by corporate powers.  As Harold Meyerson explains, four decades of lobbying, as well as the rise of globalism, changed what is “politically permissible.”  The Court is now free to join the assault on institutions designed to help the little guy, and paving the way for a gig economy unhindered by government.

It could be argued that Bush v Gore was based not so much on the law but on the personal political opinions of five judges. They wanted a Republican president and sought an after-the-fact constitutional argument (that they said should not be used as a precedent).  Bush v. Gore could be seen as a one-time gig, where the majority of the Supreme Court overruled the majority of voters. But, too many of the current members of the conservative majority seem to be repeatedly crafting constitutional rulings in order to best serve the political agenda that they share with the rich.

The sweetest gig for the “One Percent” was Citizen’s United, which treated corporations as individuals with the First Amendment right of free speech.  Similarly, closely held family corporations can now discriminate against employees desiring birth control because the conservative majority extended religious freedom to them. Flesh and blood individuals, however, no longer have the right to elect representatives who can protect Americans’ right to vote through extending crucial Voting Rights Act provisions. And, with today’s Court, Americans can’t even think about using the courts to resist gerrymandering and thus give the majority a chance to rule.

So, here’s the legal gig in today’s gig economy.  Venture capitalists have used politics, as well as technology, to turn people’s careers into what Nunberg calls “a patchwork of temporary projects and assignments.” These elites believe that government regulations, which previous Courts have ruled to be constitutional, are wrong and the majority of today’s Supreme Court justices seem to share those beliefs.  That’s fine; everyone has a right to his or her own opinions. As Meyerson explains, Justice Lewis Powell’s personal opinions were as anti-union in 1979 as Sam Alioto’s are today. Powell bowed to “the reality that collective bargaining was an established American institution that conservatives couldn’t frontally attack.” But, today’s business and Republican elites feel free to smash collective bargaining.

Another problem, I fear, is that even when they lack a constitutional rationale for transforming their personal opinions into precedents, too many of today’s conservative justices seem to seek after-the-fact justifications for turning the One Percent’s preferences into the law of the land.

It now looks like the Supreme Court’s newest gig will be the imposition of Right to Work laws for public sector workers in 25 states. It sounds like Friedrichs v California Teachers Association will be the vehicle for overturning the Abood decision. For nearly forty years, Abood has kept a balance between the rights of workers to organize with the First Amendment rights of workers who don’t support unions.  The duly enacted laws of those states maintained a compromise known as the “agency shop.”   It deters the sweet gig of freeloading or paying nothing for the benefits provided by union-negotiated contracts.  However, nobody is required to join a union or support ideas they oppose that aren’t related to collective bargaining. Above all, the rights of Americans to enact laws to protect against the vagaries of the unrestricted free market were upheld.

Too many education reformers support Friedrichs merely as a weapon against teachers unions who have opposed their test, sort, reward, and punish approach to school improvement. They forget that the education aspect of the case is just a small part of the overall dynamic.  This is just one more multi-front battle to turn America into a gig economy. As Sarah Butrymowicz explains in the Hechinger Report, Friedrichs was “spearheaded by the conservative Center for Individual Rights, which has also sought twice to overturn the Affordable Care Act at the Supreme Court.” As she further explains, “roughly 20 percent of public employees in right-to-work states belong to a union, compared to nearly 50 percent in agency shop states.” Worse, 80% of public sector union members are located in those agency shop states, and that means that Friedrichs, by dropping membership to the levels of Right to Work States, could undermine the nation’s most powerful voices for progressivism.

Fifteen years ago, the AFT/OK union president and I served on the Steering Committee of a bipartisan school improvement effort as we lost the fight against Right to Work.  Despite our disagreement on labor law, teachers and business people worked professionally and collaboratively on a compromise that raised taxes, saving the Oklahoma City Public School System from economic collapse, and on an evidence-based student achievement plan.  The business leaders rejected teach-to-the-test as we teachers went along with school choice. We did so while agreeing to disagree on Right to Work.  We also agreed – and this is the crucial point ignored by today’s corporate school reformers – that conservatives had a right to advance their agenda through the political process.  They exerted their political rights and they won.

By the way, the predictable result of Right to Work was the complete dominance of state government by the Right wing. Oklahoma now has the nation’s 6^th lowest median family income.  Since then, unions have been in retreat and advocates for the poor have been shut out of government. Oklahoma has grown unhealthier, faster, than any other state. It is 49^th in access to primary care physicians, while leaving Obama Care money on the table. We’re now ranked between 46^th and 50^th in health outcomes.  And, I won’t even get started on the extreme conservative social agenda that has been imposed.

Fifteen years ago, Oklahoma workers lost. That’s life.  Had corporate school reformers in other states sought to defeat or destroy their unions through the political process, they might have won and, I believe, that means students would have lost. Such results would have been tragic but that is the way that a constitutional democracy works. Sadly, corporate school reformers, like so many of the elites who rule our gig economy, are impatient as well as dismissive of democratic traditions of fair play. When their reforms face too much opposition, or fail because they were too hurried and ill-conceived to work in the real world, they insist that the courts must fight their battles for them.

The reactionaries sponsoring the Friedrichs case may be the ones who inflict a catastrophic defeat on unions, but liberal and neo-liberal school reformers helped pave the way through Vergara and the spin accompanying other suits that challenge teachers’ due process rights. And, too many reformers are gloating about the teachers’ unions’ possible defeat, ignoring the way that Friedrichs would damage all types of working people.

Public sector unions would be severely damaged by a loss in Friedrichs.  I don’t think it will happen, but without strong unions, the principle of a holistic public school education for all may also be threatened.  Similarly, the middle class and our social safety net may not survive in the gig economy. As more and more Americans lose the opportunities for economic stability, we could see a Battle Royal where all its victims fight to beggar their neighbors. But, we teachers and unions will not abandon the battle for social justice.  We see our efforts as a lifelong struggle – not a gig.

I believe that educators and unions will find a way to create the jobs, benefits, and schools necessary for the 21^st century.  I believe that the next president will appoint judges who will curtail the conservatives’ judicial activism that has spun out of control. We will continue to defend ourselves in court, as we use grassroots organizing and the political process to promote equity and justice.  We will continue to understand that others will disagree with our agenda and bring immense amounts of money to their side of the political process.

I wish reformers understood that they also have the constitutional right to bring the politics of destruction to education, but they don’t need to exercise it.  Even if they are completely convinced that they are righteous and their opponents  are evil, they should not embrace Friedrichs. They should not seek a place in history alongside of Bush v Gore, Citizens United, the assaults on birth control, health care, and voting rights, and the rest of the One Percent’s agenda.  After nearly a generation of failure in using competition-driven, test-driven reform to improve schools, accountability-driven reformers have the right to continue the fight against teachers. However, they should not cooperate with those who would turn the Supreme Court into a gig where winning by any means necessary, not our legal principles, is the driving force. Liberal and neo-liberal reformers should have the wisdom to distance themselves from attacks on educators and unions, who oppose their school reform theories, but who have long been loyal partners in the question for justice.

What do you think? If Friedrichs was really about a narrow aspect of free speech, and not the path to a gig economy, would the Supreme Court have heard the case? Would school reformers support the imposition of Right to Work on anyone else but teachers?  Why do they hate teachers unions so much that they would agree to throw all public sector workers under the bus?