Between the failure of the latest reprehensible attempt to repeal the Affordable Care Act and Roy Moore’s win in the Alabama Republican Senate primary, this has been a rough week for Senate Majority Leader Mitch McConnell. But this week also brought a reminder of one of his most important coups: preserving a Supreme Court vacancy for Donald Trump.

On Thursday, the Supreme Court agreed to hear Janus v. American Federation of State, County, and Municipal Employees, a case which will almost certainly gut public sector unions once it is decided. This will be a particularly stark example of the anti-democratic feedback loop that has allowed Republicans to maintain power despite a highly unpopular agenda, as unrepresentative institutions enable Republicans to make appointments or enact policies that further entrench their power.



In 1977, the Supreme Court held unanimously in Abood v. Detroit Board of Education that public employees represented by a union could charge non-members fees equivalent to dues in order to cover non–politically related activities. The Court’s logic defending “agency shops” remains sound. It rejected the argument that such fees violated workers’ First Amendment rights to free speech by empowering unions to speak for them. Instead, it found that these workers were asking to free-ride by getting the benefits of collective bargaining without sharing the expenses. But because the decision favored the interests of organized labor, it has long been a target of Republican legal operatives as the federal courts marched to the right, starting with the election of Ronald Reagan.

Indeed, Abood was very nearly overruled in 2016. In January of that year, the Court heard oral arguments in Friedrichs v. California Teachers Association, and after the arguments it was apparent that a 5-4 majority would use the case to rule that public sector agency shops violated the First Amendment, even if compelled dues could not be used for directly political activities. But after the unexpected death of Justice Antonin Scalia in March, the Court ended up deadlocked 4-4, leaving in place a lower court ruling refusing to overrule Abood.

Which brings us to McConnell. Had Barack Obama been able to appoint Scalia’s replacement, Abood would almost certainly have been safe in the short term. But McConnell successfully blockaded Obama from filling the Supreme Court vacancy. This gamble paid off in spades when Trump unexpectedly won the election, and nominated Federalist Society dream nominee Neil Gorsuch to the Court, where he was confirmed on a mostly party-line vote (with every Republican joined by three deep-red state Democrats). No wonder McConnell spent the last week touring his home state with Gorsuch, his critical political ally.