The Supreme Court is poised to bring “right to work” (RTW) to the public sector. Conservative, anti-labor forces see this as a blow to labor and are providing the financial and ideological support for the effort. Public employee unions agree that the push — which would outlaw “union security” provisions that mandate workers covered by union contracts pay for their representation — will further weaken unions. Some labor commentators, however, looking for silver linings, argue that Janus v. AFSCME may be a blessing in disguise.

One idea is that a pro-business ruling in Janus could create some sort of legal Trojan horse. Since the argument in Janus is that union activity is political, then — in a kind of legal gotcha — that logic could be used to overturn a host of restrictions on union activity using free-speech arguments.

Let’s get real here — that’s not how judges decide cases. As the legal realist school pointed out over a century ago, judges don’t pull legal decisions from the sky but instead make concrete choices that are political in nature. Anti-labor judges decide cases in an anti-labor fashion. Corporate liberal judges decide cases in a corporate liberal fashion. Labor law is already riddled with contradictions, and restrictions on picketing and solidarity are far greater for unions than any other group. Consistency has little to do with it.