The death of Supreme Court JusÂtice Ruth BadÂer GinsÂberg has trigÂgered a hasty search by PresÂiÂdent DonÂald Trump and SenÂate RepubÂliÂcans for a jusÂtice to fill the empÂty seat before the NovemÂber presÂiÂdenÂtial election.
Now Trump has choÂsen Amy Coney BarÂrett, of the two women at the top of his shortÂlist, as his Supreme Court nomÂiÂnaÂtion, but she has not yet been conÂfirmed. BarÂrett, a staunch conÂserÂvÂaÂtive groomed by the FedÂerÂalÂist SociÂety, has been idenÂtiÂfied as a strongÂly anti-aborÂtion nominee.
In employÂment casÂes that BarÂrett has seen, she has adoptÂed largeÂly anti-workÂerâ€”and on two occaÂsions, racialÂly disÂcrimÂiÂnaÂtoÂryâ€”posiÂtions. InÂ 2017, BarÂrettÂ votÂedÂ not to re-hearÂ U.S. Equal EmployÂment OpporÂtuÂniÂty ComÂmisÂsion v. AutoÂzone, in which aÂ three-judge panÂel ruled in favor of an AutoÂzone which had segÂreÂgatÂed its stores based on race. In aÂ 2019Â case,Â she ruledÂ against aÂ Black IlliÂnois DepartÂment of TransÂportaÂtion workÂer who had alleged that his firÂing was racialÂly-motiÂvatÂed, givÂen racist verÂbal harassÂment he expeÂriÂenced on the job. And this year, BarÂrettÂ ruledÂ that GrubÂHub driÂvers could not file aÂ class action lawÂsuit against their employÂerâ€”a blow to workÂers in the rapidÂly expandÂing gigÂ economy.Â
If appointÂed, BarÂrett would cement the conÂserÂvÂaÂtive majorÂiÂty on aÂ court that has already demonÂstratÂed aÂ strong anti-workÂer tenÂdenÂcy. In two major labor casÂes in the last three years the Supreme Court ruledÂ 5â€“4Â to curb union and workÂer proÂtecÂtions. InÂ Epic SysÂtem Corp. v. Lewis, the Supreme Court deterÂmined that employÂers could conÂtracÂtuÂalÂly obligÂate workÂers to forÂgo their right to colÂlecÂtiveÂly sue the employÂerâ€”before the deciÂsion, class action lawÂsuits were regardÂed asÂ â€śproÂtectÂed conÂcertÂed activÂiÂtyâ€ť under SecÂtionÂ 7Â of the NLRA. And inÂ Janus v. AFSCME,Â the court ruled that pubÂlic-secÂtor unions could no longer require repÂreÂsentÂed workÂers to pay union fees, again votÂing along conÂserÂvÂaÂtive-libÂerÂalÂ lines.Â
In These Times spoke to James Gray Pope, a labor activist and legal scholÂar from RutÂgers UniÂverÂsiÂty, about the conÂserÂvÂaÂtive court and labor.
In These Times: What kinds of labor litÂiÂgaÂtion do you anticÂiÂpate comÂing before the court? And what are the impliÂcaÂtions for labor when the court becomes so overÂwhelmÂingÂly conservative?
James Gray Pope:Â The big-picÂture point here is that throughÂout the whole range of issues that affect the workÂing class, the Supreme Court is going to be in aÂ funÂdaÂmenÂtalÂly reacÂtionary posÂture. And weâ€™ve been through aÂ periÂod like that, the so-called LochnÂer era, which refers to the lateÂ 19thÂ and earÂlyÂ 20thÂ cenÂtuÂry Supreme Court trend of opposÂing legal regÂuÂlaÂtions around workÂing conÂdiÂtions. The LochnÂer case itself involved aÂ New York maxÂiÂmum hours law that the court struck down because it vioÂlatÂed the indiÂvidÂual freeÂdom of conÂtract of employÂers and workÂers to agree that the workÂer would work for any numÂber of hours that they wantÂed. And the court said it was illeÂgitÂiÂmate for aÂ legÂisÂlaÂture to take into account imbalÂances of powÂer in aÂ conÂtracÂtuÂal relaÂtionÂship, unless the proÂtectÂed indiÂvidÂuÂals were someÂhow incaÂpable of takÂing care of themÂselves, like chilÂdren. So, that being the basic ideÂoÂlogÂiÂcal cenÂter-point for jurispruÂdence durÂing that periÂod, the court did aÂ lot of interÂvenÂtion in terms of strikÂing down workÂer-proÂtecÂtive legÂisÂlaÂtion, maxÂiÂmum-hours laws, minÂiÂmum wage laws, union-rights laws, and laws outÂlawÂingÂ yelÂlow dog conÂtracts.
And this periÂod today is simÂiÂlar. The core ideÂolÂoÂgy is realÂly the same, but the court canâ€™t impleÂment it with the kind of puriÂty that it could impleÂment it durÂing the LochnÂer era, because labor statÂues are sitÂting there. The stateÂment of purÂpose of the NationÂal Labor RelaÂtions Act (NLRA) talks about inequalÂiÂty, barÂgainÂing powÂer, and the need for full freeÂdom of assoÂciÂaÂtion of workÂers. So they have to deal with that.
But you can see it inÂ Epic SysÂtems.Â You can see right from the beginÂning of the opinÂion, JusÂtice Neil GorÂsuch is irriÂtatÂed at the workÂers there for bringÂing aÂ suit against their employÂer after they had agreed not to. So the idea here is that an indiÂvidÂual workÂer, you know, sits down with an employÂer and is in an equal relaÂtionÂship in negoÂtiÂatÂing someÂthing. WhereÂas, of course, as JusÂtice Ruth BadÂer GinsÂburg says, in footÂnote two of her opinÂion, it didÂnâ€™t hapÂpen that way. The comÂpaÂny just sends out an edict sayÂing,Â â€śYou either agree to this or you lose your job.â€ť Thatâ€™s the present-day verÂsion of the LochnÂer era, indiÂvidÂual libÂerÂty ofÂ contract.Â
In These Times: Beyond casÂes that deal directÂly with the NLRA, what is the kind of litÂiÂgaÂtion that could come before the Supreme Court that would affect workers?
James Gray Pope: I donâ€™t think anyÂthingâ€™s going to be so much difÂferÂent from the recent direcÂtion. Itâ€™s just that itâ€™s going to be more intense and conÂsisÂtent. Whatâ€™s going to be an issue here in terms of what the court does, I think, is the extent to which Supreme Court JusÂtice John Roberts, who has some sense of hisÂtoÂry and some conÂcern about what the hisÂtorÂiÂcal verÂdict on his chief jusÂticeÂship is going to be, is going to conÂstrain the court in the labor law area. I think he underÂstands the need to conÂstrain the court in the civÂil rights area, and even some of the othÂer conÂserÂvÂaÂtive jusÂtices have issued surÂprisÂing pro-civÂil rights opinions.
The Supreme Court is like any politÂiÂcal body in the sense that you spend politÂiÂcal capÂiÂtal, and thereâ€™s an assessÂment:Â â€śWell, do we want to spend our politÂiÂcal capÂiÂtal on this issue? Are we going to spend it on that issue?â€ť And thatâ€™s going to be the big quesÂtion now that theyâ€™re going to have. If this nomÂiÂnee gets conÂfirmed, conÂserÂvÂaÂtives are going to have aÂ very strong majorÂiÂty. And theyâ€™re going to have the powÂer to transÂform the law immenseÂly. And so the quesÂtion is, where are they going to put their enerÂgy? And my fear is not so much for labor law, because labor laws are funÂdaÂmenÂtalÂly weak anyÂway, but more in the area of votÂing rights andÂ gerrymandering.Â
In These Times: How does the FedÂerÂalÂist Societyâ€™s texÂtuÂalÂist or origÂiÂnalÂist traÂdiÂtion affect rulÂings on labor-relatÂed cases?
James Gray Pope:Â OrigÂiÂnalÂism iniÂtialÂly was aÂ pureÂly conÂserÂvÂaÂtive phiÂlosÂoÂphy where basiÂcalÂly you imagÂine setÂting aÂ time machine back and askÂing the peoÂple who enactÂed theÂ 14thÂ AmendÂment, for examÂple,Â â€śWell, did you intend to give women equal rights to men?â€ť And that was the kind of methodÂolÂoÂgy thatâ€™s now referred to by more sophisÂtiÂcatÂed proÂpoÂnents of origÂiÂnal meanÂing asÂ â€śorigÂiÂnal expectÂed appliÂcaÂtion,â€ť where instead of going after the origÂiÂnal meanÂing youâ€™re going back and youâ€™re going after the ways in which peoÂple in that hisÂtorÂiÂcal era would have applied theÂ provision.Â
One of the big probÂlems with origÂiÂnalÂism is, what hapÂpens if aÂ body of preceÂdent builds up that seems to conÂtraÂdict your view? In aÂ way, the most draÂmatÂic illusÂtraÂtion is Supreme Court JusÂtice Clarence Thomas on the scope of the ComÂmerce Clause. And this relates to labor. Thomas thinks that the wordÂ â€ścomÂmerceâ€ť is the ConÂgressâ€™s powÂer to regÂuÂlate interÂstate comÂmerce, the word comÂmerce just means the buyÂing and sellÂing of things. And so, in his view, the deciÂsions that upheld the WagÂnÂer Act and the NationÂal Labor RelaÂtions Act are wrong from an origÂiÂnalÂist point ofÂ view.
Well, the probÂlem is thatÂ stare deciÂsisâ€”a judiÂcial polÂiÂcy that courts genÂerÂalÂly folÂlow earÂliÂer rulÂings (preceÂdent), someÂtimes even when the earÂliÂer rulÂings were erroÂneousâ€”is totalÂly manipÂuÂlaÂble: Itâ€™s aÂ mulÂti facÂtor analyÂsis thatâ€™s easÂiÂlyÂ manipulable.Â
In These Times: ConÂsidÂerÂing the fact that labor law in the UnitÂed States is realÂly weak, and workÂersâ€™ proÂtecÂtions will likeÂly be furÂther erodÂed in the comÂing years, what are the ways that you might anticÂiÂpate unions or workÂers orgaÂniÂzaÂtions respondÂing to that landÂscape, through the law or not?
James Gray Pope: BroadÂly, I would say that polÂiÂtics are key. And whatâ€™s realÂly cruÂcial is to get strong proÂgresÂsives into electÂed office, from which point they can pack the court. So if you want it to go through forÂmal legal method mechÂaÂnisms, that would be the way to do it. And obviÂousÂly, thatâ€™s an area thatâ€™s fraught right now with the gerÂryÂmanÂderÂing opinÂion, the votÂer ID rulÂings, and CitÂiÂzens UnitÂed guarÂanÂteeÂing the right of monÂey to skew the politÂiÂcal process. All of those things are going to make it very difÂfiÂcult to break through.
The last time this was a probÂlem was around the LochnÂer era, durÂing which a lot of peoÂple were denied the right to vote, includÂing not only African AmerÂiÂcans in the South, but also poor whites in the South, and women. So the demoÂcÂraÂtÂic process was skewed then as well. UltiÂmateÂly, what was cruÂcial was mass resistance.
And the strikes inÂ 1934â€”that was the periÂod where you had genÂerÂal strikes and threatÂened genÂerÂal strikes in aÂ numÂber of cities, bringÂing about the perÂceived posÂsiÂbilÂiÂty of, if not revÂoÂluÂtion, someÂthing at least threatÂenÂing the order. And that got the NLRA passed. And in my opinÂion, thatâ€™s what got the NLRA upheld as conÂstiÂtuÂtionÂal along with PresÂiÂdent Franklin Delano Rooseveltâ€™s threat to pack the Supreme Court with jusÂtices symÂpaÂthetÂic to the NewÂ Deal.
This blog originally appeared at In These Times on September 28, 2020. Reprinted with permission.
About the Author: Alice Herman is an In These Times GoodÂman InvesÂtigaÂtive FelÂlow, as well as a writer based in MadiÂson, WisÂconÂsin, where she works at a restauÂrant. She conÂtributes regÂuÂlarÂly to IsthÂmus, Madisonâ€™s alt-weekÂly, and The ProÂgresÂsive magazine.