The death of Supreme Court Jus¬≠tice Ruth Bad¬≠er Gins¬≠berg has trig¬≠gered a hasty search by Pres¬≠i¬≠dent Don¬≠ald Trump and Sen¬≠ate Repub¬≠li¬≠cans for a jus¬≠tice to fill the emp¬≠ty seat before the Novem¬≠ber pres¬≠i¬≠den¬≠tial election.
Now Trump has cho¬≠sen Amy Coney Bar¬≠rett, of the two women at the top of his short¬≠list, as his Supreme Court nom¬≠i¬≠na¬≠tion, but she has not yet been con¬≠firmed. Bar¬≠rett, a staunch con¬≠ser¬≠v¬≠a¬≠tive groomed by the Fed¬≠er¬≠al¬≠ist Soci¬≠ety, has been iden¬≠ti¬≠fied as a strong¬≠ly anti-abor¬≠tion nominee.
In employ¬≠ment cas¬≠es that Bar¬≠rett has seen, she has adopt¬≠ed large¬≠ly anti-work¬≠er‚ÄĒand on two occa¬≠sions, racial¬≠ly dis¬≠crim¬≠i¬≠na¬≠to¬≠ry‚ÄĒposi¬≠tions. In¬†2017, Bar¬≠rett¬†vot¬≠ed¬†not to re-hear¬†U.S. Equal Employ¬≠ment Oppor¬≠tu¬≠ni¬≠ty Com¬≠mis¬≠sion v. Auto¬≠zone, in which a¬†three-judge pan¬≠el ruled in favor of an Auto¬≠zone which had seg¬≠re¬≠gat¬≠ed its stores based on race. In a¬†2019¬†case,¬†she ruled¬†against a¬†Black Illi¬≠nois Depart¬≠ment of Trans¬≠porta¬≠tion work¬≠er who had alleged that his fir¬≠ing was racial¬≠ly-moti¬≠vat¬≠ed, giv¬≠en racist ver¬≠bal harass¬≠ment he expe¬≠ri¬≠enced on the job. And this year, Bar¬≠rett¬†ruled¬†that Grub¬≠Hub dri¬≠vers could not file a¬†class action law¬≠suit against their employ¬≠er‚ÄĒa blow to work¬≠ers in the rapid¬≠ly expand¬≠ing gig¬†economy.¬†
If appoint¬≠ed, Bar¬≠rett would cement the con¬≠ser¬≠v¬≠a¬≠tive major¬≠i¬≠ty on a¬†court that has already demon¬≠strat¬≠ed a¬†strong anti-work¬≠er ten¬≠den¬≠cy. In two major labor cas¬≠es in the last three years the Supreme Court ruled¬†5‚Äď4¬†to curb union and work¬≠er pro¬≠tec¬≠tions. In¬†Epic Sys¬≠tem Corp. v. Lewis, the Supreme Court deter¬≠mined that employ¬≠ers could con¬≠trac¬≠tu¬≠al¬≠ly oblig¬≠ate work¬≠ers to for¬≠go their right to col¬≠lec¬≠tive¬≠ly sue the employ¬≠er‚ÄĒbefore the deci¬≠sion, class action law¬≠suits were regard¬≠ed as¬†‚Äúpro¬≠tect¬≠ed con¬≠cert¬≠ed activ¬≠i¬≠ty‚ÄĚ under Sec¬≠tion¬†7¬†of the NLRA. And in¬†Janus v. AFSCME,¬†the court ruled that pub¬≠lic-sec¬≠tor unions could no longer require rep¬≠re¬≠sent¬≠ed work¬≠ers to pay union fees, again vot¬≠ing along con¬≠ser¬≠v¬≠a¬≠tive-lib¬≠er¬≠al¬†lines.¬†
In These Times spoke to James Gray Pope, a labor activist and legal schol¬≠ar from Rut¬≠gers Uni¬≠ver¬≠si¬≠ty, about the con¬≠ser¬≠v¬≠a¬≠tive court and labor.
In These Times: What kinds of labor lit¬≠i¬≠ga¬≠tion do you antic¬≠i¬≠pate com¬≠ing before the court? And what are the impli¬≠ca¬≠tions for labor when the court becomes so over¬≠whelm¬≠ing¬≠ly conservative?
James Gray Pope:¬†The big-pic¬≠ture point here is that through¬≠out the whole range of issues that affect the work¬≠ing class, the Supreme Court is going to be in a¬†fun¬≠da¬≠men¬≠tal¬≠ly reac¬≠tionary pos¬≠ture. And we‚Äôve been through a¬†peri¬≠od like that, the so-called Lochn¬≠er era, which refers to the late¬†19th¬†and ear¬≠ly¬†20th¬†cen¬≠tu¬≠ry Supreme Court trend of oppos¬≠ing legal reg¬≠u¬≠la¬≠tions around work¬≠ing con¬≠di¬≠tions. The Lochn¬≠er case itself involved a¬†New York max¬≠i¬≠mum hours law that the court struck down because it vio¬≠lat¬≠ed the indi¬≠vid¬≠ual free¬≠dom of con¬≠tract of employ¬≠ers and work¬≠ers to agree that the work¬≠er would work for any num¬≠ber of hours that they want¬≠ed. And the court said it was ille¬≠git¬≠i¬≠mate for a¬†leg¬≠is¬≠la¬≠ture to take into account imbal¬≠ances of pow¬≠er in a¬†con¬≠trac¬≠tu¬≠al rela¬≠tion¬≠ship, unless the pro¬≠tect¬≠ed indi¬≠vid¬≠u¬≠als were some¬≠how inca¬≠pable of tak¬≠ing care of them¬≠selves, like chil¬≠dren. So, that being the basic ide¬≠o¬≠log¬≠i¬≠cal cen¬≠ter-point for jurispru¬≠dence dur¬≠ing that peri¬≠od, the court did a¬†lot of inter¬≠ven¬≠tion in terms of strik¬≠ing down work¬≠er-pro¬≠tec¬≠tive leg¬≠is¬≠la¬≠tion, max¬≠i¬≠mum-hours laws, min¬≠i¬≠mum wage laws, union-rights laws, and laws out¬≠law¬≠ing¬†yel¬≠low dog con¬≠tracts.
And this peri¬≠od today is sim¬≠i¬≠lar. The core ide¬≠ol¬≠o¬≠gy is real¬≠ly the same, but the court can‚Äôt imple¬≠ment it with the kind of puri¬≠ty that it could imple¬≠ment it dur¬≠ing the Lochn¬≠er era, because labor stat¬≠ues are sit¬≠ting there. The state¬≠ment of pur¬≠pose of the Nation¬≠al Labor Rela¬≠tions Act (NLRA) talks about inequal¬≠i¬≠ty, bar¬≠gain¬≠ing pow¬≠er, and the need for full free¬≠dom of asso¬≠ci¬≠a¬≠tion of work¬≠ers. So they have to deal with that.
But you can see it in¬†Epic Sys¬≠tems.¬†You can see right from the begin¬≠ning of the opin¬≠ion, Jus¬≠tice Neil Gor¬≠such is irri¬≠tat¬≠ed at the work¬≠ers there for bring¬≠ing a¬†suit against their employ¬≠er after they had agreed not to. So the idea here is that an indi¬≠vid¬≠ual work¬≠er, you know, sits down with an employ¬≠er and is in an equal rela¬≠tion¬≠ship in nego¬≠ti¬≠at¬≠ing some¬≠thing. Where¬≠as, of course, as Jus¬≠tice Ruth Bad¬≠er Gins¬≠burg says, in foot¬≠note two of her opin¬≠ion, it did¬≠n‚Äôt hap¬≠pen that way. The com¬≠pa¬≠ny just sends out an edict say¬≠ing,¬†‚ÄúYou either agree to this or you lose your job.‚ÄĚ That‚Äôs the present-day ver¬≠sion of the Lochn¬≠er era, indi¬≠vid¬≠ual lib¬≠er¬≠ty of¬†contract.¬†
In These Times: Beyond cas¬≠es that deal direct¬≠ly with the NLRA, what is the kind of lit¬≠i¬≠ga¬≠tion that could come before the Supreme Court that would affect workers?
James Gray Pope: I don‚Äôt think any¬≠thing‚Äôs going to be so much dif¬≠fer¬≠ent from the recent direc¬≠tion. It‚Äôs just that it‚Äôs going to be more intense and con¬≠sis¬≠tent. What‚Äôs going to be an issue here in terms of what the court does, I think, is the extent to which Supreme Court Jus¬≠tice John Roberts, who has some sense of his¬≠to¬≠ry and some con¬≠cern about what the his¬≠tor¬≠i¬≠cal ver¬≠dict on his chief jus¬≠tice¬≠ship is going to be, is going to con¬≠strain the court in the labor law area. I think he under¬≠stands the need to con¬≠strain the court in the civ¬≠il rights area, and even some of the oth¬≠er con¬≠ser¬≠v¬≠a¬≠tive jus¬≠tices have issued sur¬≠pris¬≠ing pro-civ¬≠il rights opinions.
The Supreme Court is like any polit¬≠i¬≠cal body in the sense that you spend polit¬≠i¬≠cal cap¬≠i¬≠tal, and there‚Äôs an assess¬≠ment:¬†‚ÄúWell, do we want to spend our polit¬≠i¬≠cal cap¬≠i¬≠tal on this issue? Are we going to spend it on that issue?‚ÄĚ And that‚Äôs going to be the big ques¬≠tion now that they‚Äôre going to have. If this nom¬≠i¬≠nee gets con¬≠firmed, con¬≠ser¬≠v¬≠a¬≠tives are going to have a¬†very strong major¬≠i¬≠ty. And they‚Äôre going to have the pow¬≠er to trans¬≠form the law immense¬≠ly. And so the ques¬≠tion is, where are they going to put their ener¬≠gy? And my fear is not so much for labor law, because labor laws are fun¬≠da¬≠men¬≠tal¬≠ly weak any¬≠way, but more in the area of vot¬≠ing rights and¬†gerrymandering.¬†
In These Times: How does the Fed¬≠er¬≠al¬≠ist Society‚Äôs tex¬≠tu¬≠al¬≠ist or orig¬≠i¬≠nal¬≠ist tra¬≠di¬≠tion affect rul¬≠ings on labor-relat¬≠ed cases?
James Gray Pope:¬†Orig¬≠i¬≠nal¬≠ism ini¬≠tial¬≠ly was a¬†pure¬≠ly con¬≠ser¬≠v¬≠a¬≠tive phi¬≠los¬≠o¬≠phy where basi¬≠cal¬≠ly you imag¬≠ine set¬≠ting a¬†time machine back and ask¬≠ing the peo¬≠ple who enact¬≠ed the¬†14th¬†Amend¬≠ment, for exam¬≠ple,¬†‚ÄúWell, did you intend to give women equal rights to men?‚ÄĚ And that was the kind of method¬≠ol¬≠o¬≠gy that‚Äôs now referred to by more sophis¬≠ti¬≠cat¬≠ed pro¬≠po¬≠nents of orig¬≠i¬≠nal mean¬≠ing as¬†‚Äúorig¬≠i¬≠nal expect¬≠ed appli¬≠ca¬≠tion,‚ÄĚ where instead of going after the orig¬≠i¬≠nal mean¬≠ing you‚Äôre going back and you‚Äôre going after the ways in which peo¬≠ple in that his¬≠tor¬≠i¬≠cal era would have applied the¬†provision.¬†
One of the big prob¬≠lems with orig¬≠i¬≠nal¬≠ism is, what hap¬≠pens if a¬†body of prece¬≠dent builds up that seems to con¬≠tra¬≠dict your view? In a¬†way, the most dra¬≠mat¬≠ic illus¬≠tra¬≠tion is Supreme Court Jus¬≠tice Clarence Thomas on the scope of the Com¬≠merce Clause. And this relates to labor. Thomas thinks that the word¬†‚Äúcom¬≠merce‚ÄĚ is the Con¬≠gress‚Äôs pow¬≠er to reg¬≠u¬≠late inter¬≠state com¬≠merce, the word com¬≠merce just means the buy¬≠ing and sell¬≠ing of things. And so, in his view, the deci¬≠sions that upheld the Wag¬≠n¬≠er Act and the Nation¬≠al Labor Rela¬≠tions Act are wrong from an orig¬≠i¬≠nal¬≠ist point of¬†view.
Well, the prob¬≠lem is that¬†stare deci¬≠sis‚ÄĒa judi¬≠cial pol¬≠i¬≠cy that courts gen¬≠er¬≠al¬≠ly fol¬≠low ear¬≠li¬≠er rul¬≠ings (prece¬≠dent), some¬≠times even when the ear¬≠li¬≠er rul¬≠ings were erro¬≠neous‚ÄĒis total¬≠ly manip¬≠u¬≠la¬≠ble: It‚Äôs a¬†mul¬≠ti fac¬≠tor analy¬≠sis that‚Äôs eas¬≠i¬≠ly¬†manipulable.¬†
In These Times: Con¬≠sid¬≠er¬≠ing the fact that labor law in the Unit¬≠ed States is real¬≠ly weak, and work¬≠ers‚Äô pro¬≠tec¬≠tions will like¬≠ly be fur¬≠ther erod¬≠ed in the com¬≠ing years, what are the ways that you might antic¬≠i¬≠pate unions or work¬≠ers orga¬≠ni¬≠za¬≠tions respond¬≠ing to that land¬≠scape, through the law or not?
James Gray Pope: Broad¬≠ly, I would say that pol¬≠i¬≠tics are key. And what‚Äôs real¬≠ly cru¬≠cial is to get strong pro¬≠gres¬≠sives into elect¬≠ed office, from which point they can pack the court. So if you want it to go through for¬≠mal legal method mech¬≠a¬≠nisms, that would be the way to do it. And obvi¬≠ous¬≠ly, that‚Äôs an area that‚Äôs fraught right now with the ger¬≠ry¬≠man¬≠der¬≠ing opin¬≠ion, the vot¬≠er ID rul¬≠ings, and Cit¬≠i¬≠zens Unit¬≠ed guar¬≠an¬≠tee¬≠ing the right of mon¬≠ey to skew the polit¬≠i¬≠cal process. All of those things are going to make it very dif¬≠fi¬≠cult to break through.
The last time this was a prob¬≠lem was around the Lochn¬≠er era, dur¬≠ing which a lot of peo¬≠ple were denied the right to vote, includ¬≠ing not only African Amer¬≠i¬≠cans in the South, but also poor whites in the South, and women. So the demo¬≠c¬≠ra¬≠t¬≠ic process was skewed then as well. Ulti¬≠mate¬≠ly, what was cru¬≠cial was mass resistance.
And the strikes in¬†1934‚ÄĒthat was the peri¬≠od where you had gen¬≠er¬≠al strikes and threat¬≠ened gen¬≠er¬≠al strikes in a¬†num¬≠ber of cities, bring¬≠ing about the per¬≠ceived pos¬≠si¬≠bil¬≠i¬≠ty of, if not rev¬≠o¬≠lu¬≠tion, some¬≠thing at least threat¬≠en¬≠ing the order. And that got the NLRA passed. And in my opin¬≠ion, that‚Äôs what got the NLRA upheld as con¬≠sti¬≠tu¬≠tion¬≠al along with Pres¬≠i¬≠dent Franklin Delano Roosevelt‚Äôs threat to pack the Supreme Court with jus¬≠tices sym¬≠pa¬≠thet¬≠ic to the New¬†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 Good¬≠man Inves¬≠tiga¬≠tive Fel¬≠low, as well as a writer based in Madi¬≠son, Wis¬≠con¬≠sin, where she works at a restau¬≠rant. She con¬≠tributes reg¬≠u¬≠lar¬≠ly to Isth¬≠mus, Madison‚Äôs alt-week¬≠ly, and The Pro¬≠gres¬≠sive magazine.