Smith v. Arkansas State Highway Employees, Local 1315/Dissent Marshall

by Thurgood Marshall

Mr. Justice Marshall, dissenting.

Now this Court is deciding vital constitutional questions without even a plenary hearing. I dissent.

This Court has long held that the First Amendment protects the right of unions to secure legal representation for their members. Mine Workers v. Illinois State Bar Assn., 389 U.S. 217, 221–222 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 8 (1964); see Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971); NAACP v. Button, 371 U.S. 415 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). Based on this precedent and on Arkansas' recognition of public employees' right to organize and join a union, Potts v. Hay, 229 Ark. 830, 315 S.W.2d 826 (1958), the Court of Appeals concluded that the First Amendment also encompasses respondent union's right to file grievances on behalf of its members. If under Mine Workers and Railroad Trainmen a public employer may not refuse to entertain a grievance submitted by a union-salaried attorney, it is not immediately [p467] apparent why the employer in this case should be entitled to reject a grievance asserted by the union itself.

I decline to join a summary reversal that so cavalierly disposes of substantial First Amendment issues.^*

Notes

* ↑  Moreover, summary reversal seems to me an especially inappropriate means of resolving conflicts between the United States Courts of Appeals. Compare Arkansas State Highway Employees Local 1315 v. Smith, 585 F.2d 876 (CA8 1978), with Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (CA7 1972).