A successful lower court challenge this month that is temporarily blocking West Virginia's newly minted right-to-work law is giving new hope to labor unions in Michigan and elsewhere that higher courts - perhaps the U.S. Supreme Court - will eventually find the basic premise of the RTW law is unconstitutional.

Six months ago, the Republican-dominated West Virginia Legislature overrode the veto of Democrat Gov. Earl Ray Tomblin, adopting a law making the Mountaineer State the nation's 26th right-to-work state. (Michigan became the 24th RTW state in December 2012).

Labor unions in West Virginia appealed the law in the courts, and Kanawha County Circuit Court Judge Jennifer Bailey on Aug. 10 sided with the unions’ request and issued a preliminary injunction preventing the law from being enforced until there can be a full hearing on the matter.

“The fact that our members will have to pay for representation for people who choose not to join the union or drop out of the union is just an unfair taking of their property,”  said Ken Hall, General Secretary Treasurer of the Teamsters Union.

And that "taking" term may be the crux of the whole legal argument against right to work. In addition to the fact that the statewide laws allow "free riders" - workers who get to enjoy the benefits of a collectively bargained contract without having to pay for representation.

In April, a judge in a lower court in Wisconsin similarly, but only temporarily, invalidated the Badger State's new right-to-work law. Dane County Circuit Judge William Faust argued that the harm to unions who must represent non-dues-paying employees outweighs the harm to those employees who will be required to pay dues for representation. He also said it amounted to an “illegal taking” from unions, which is prohibited by the U.S. Constitution - depending on how one views who is taking what from whom.

As expected, the conservative take on "takings" is quite different. "As it stood before the passage of the (Wisconsin) law," said the conservative blogger Ed Morrissey, "it was the unions who were allowed involuntary 'takings' of private property, thanks to pro-union government action that enforced closed-shop laws, and the workers who got 'taken,' so to speak. The unions are not entitled to that property without government regulation in the first place, and that policy is open to legislative choice, just as it was when closed-shop laws were first implemented."

In May, Judge Faust's stay on the implementation of the Wisconsin RTW law was halted by a state appellate court, whose lead judge concluded the lower court overstepped its bounds and did not indicate the unions would suffer substantial harm if the law stayed in effect while on appeal. The lead appellate court judge said "there is sufficient likelihood" that the Wisconsin RTW law will eventually be upheld - and with the 5-2 conservative majority on the state's Supreme Court, she's right.

There have been challenges to RTW in others states, too. Indiana also has a new right-to-work law, and unions made an unsuccessful attempt in the federal courts to overturn their right-to-work statute on other constitutional grounds. Michigan's right to work laws, one for private workers and one for public, have similarly been upheld in state courts. In one challenge, the Michigan Supreme Court rejected arguments that authority for public unions fell under the state Civil Service Commission, not the state Legislature, which voted in right-to-work.

For the state's private sector right-to-work law, union-backed legal efforts have focused on the federal courts in an effort to overturn the law. A federal judge's ruling in April 2014 didn't overturn Michigan's RTW law as union lawyers hoped, but it did open the door for future legal challenges.

The federal judge found that detractors of Michigan's private-sector right-to-work law had a viable claim that the National Labor Relations Act preempted three provisions of the state's 2012 RTW law. Those three areas all involved the exclusion of provisions tying the state law to union bargaining agreements, and the right to take or refrain from concerted actions. The judge also ruled that the new state RTW law should, but doesn't, apply equally to cases where intimidation, or unlawful threats over union actions might be involved.

The Michigan, Indiana, West Virginia and Wisconsin rulings haven't overturned the statewide right-to-work laws, but they're potentially setting a legal foundation for future legal action. Contained in the Wisconsin case, especially, said former organizing director for the American Federation of Teachers, Shaun Richman, "is a line of questioning over the constitutionality of the right-to-work concept that has quietly been playing out in federal courts. The result could be that all right-to-work laws are nullified—and sooner than you might imagine." Richman's article was published this spring in In These Times.

Richman cited the aforementioned "Takings Clause" in the U.S. Constitution. "This is a law,” says Marquette Law Professor Paul Secunda, “that compels one private party to provide benefits to another private party with no compensation.” He is convinced that right-to-work laws, which permit represented workers to quit their union and stop paying fees while simultaneously obligating that union to continue to spend resources representing them, are an unconstitutional “taking.”

The death of conservative Supreme Court Justice Anthony Scalia this year, and the likelihood that the nation's High Court will swing to a liberal majority if Hillary Clinton is elected president in November, has changed everything. Before Scalia died, the U.S. Supreme Court was on track this year with a test case that would have basically green lighted right-to-work for all U.S. public employees. With a potential liberal 5-4 majority on the court, these lower court cases would likely eventually go to a hand-picked, friendly U.S. appeals court, and perhaps eventually land in a more friendly U.S. Supreme Court. There is very little case law on the "taking" concept and the Supreme Court has in recent years felt little compunction to go along with precedents set in past rulings. A labor-friendly 5-4 majority on the U.S. Supreme Court could bring about a much more labor-friendly society, for years to come.

"The idea that the Supreme Court could swing from seriously considering forcing the entire public sector to go right to work in this term," said Richman, "to weighing the very constitutionality of right-to-work laws two or three years later might seem too fantastical, but such is the strange lack of case law over the underlying legal justification for requiring that a union represent all the workers but forbidding them to mandate dues and fees for that service work."