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How Amy Coney Barrett’s Appointment Would Escalate the War on Workers

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The death of Supreme Court Jus­tice Ruth Bad­er Gins­berg has trig­gered a hasty search by Pres­i­dent Don­ald Trump and Sen­ate Repub­li­cans for a jus­tice to fill the emp­ty seat before the Novem­ber pres­i­den­tial election. 

Now Trump has cho­sen Amy Coney Bar­rett, of the two women at the top of his short­list, as his Supreme Court nom­i­na­tion, but she has not yet been con­firmed. Bar­rett, a staunch con­ser­v­a­tive groomed by the Fed­er­al­ist Soci­ety, has been iden­ti­fied as a strong­ly anti-abor­tion nominee.

In employ­ment cas­es that Bar­rett has seen, she has adopt­ed large­ly anti-work­er—and on two occa­sions, racial­ly dis­crim­i­na­to­ry—posi­tions. In 2017, Bar­rett vot­ed not to re-hear U.S. Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion v. Auto­zone, in which a three-judge pan­el ruled in favor of an Auto­zone which had seg­re­gat­ed its stores based on race. In a 2019 case, she ruled against a Black Illi­nois Depart­ment of Trans­porta­tion work­er who had alleged that his fir­ing was racial­ly-moti­vat­ed, giv­en racist ver­bal harass­ment he expe­ri­enced on the job. And this year, Bar­rett ruled that Grub­Hub dri­vers could not file a class action law­suit against their employ­er—a blow to work­ers in the rapid­ly expand­ing gig economy. 

If appoint­ed, Bar­rett would cement the con­ser­v­a­tive major­i­ty on a court that has already demon­strat­ed a strong anti-work­er ten­den­cy. In two major labor cas­es in the last three years the Supreme Court ruled 5–4 to curb union and work­er pro­tec­tions. In Epic Sys­tem Corp. v. Lewis, the Supreme Court deter­mined that employ­ers could con­trac­tu­al­ly oblig­ate work­ers to for­go their right to col­lec­tive­ly sue the employ­er—before the deci­sion, class action law­suits were regard­ed as “pro­tect­ed con­cert­ed activ­i­ty” under Sec­tion 7 of the NLRA. And in Janus v. AFSCME, the court ruled that pub­lic-sec­tor unions could no longer require rep­re­sent­ed work­ers to pay union fees, again vot­ing along con­ser­v­a­tive-lib­er­al lines. 

In These Times spoke to James Gray Pope, a labor activist and legal schol­ar from Rut­gers Uni­ver­si­ty, about the con­ser­v­a­tive court and labor. 

In These Times: What kinds of labor lit­i­ga­tion do you antic­i­pate com­ing before the court? And what are the impli­ca­tions for labor when the court becomes so over­whelm­ing­ly conservative?

James Gray Pope: The big-pic­ture point here is that through­out the whole range of issues that affect the work­ing class, the Supreme Court is going to be in a fun­da­men­tal­ly reac­tionary pos­ture. And we’ve been through a peri­od like that, the so-called Lochn­er era, which refers to the late 19th and ear­ly 20th cen­tu­ry Supreme Court trend of oppos­ing legal reg­u­la­tions around work­ing con­di­tions. The Lochn­er case itself involved a New York max­i­mum hours law that the court struck down because it vio­lat­ed the indi­vid­ual free­dom of con­tract of employ­ers and work­ers to agree that the work­er would work for any num­ber of hours that they want­ed. And the court said it was ille­git­i­mate for a leg­is­la­ture to take into account imbal­ances of pow­er in a con­trac­tu­al rela­tion­ship, unless the pro­tect­ed indi­vid­u­als were some­how inca­pable of tak­ing care of them­selves, like chil­dren. So, that being the basic ide­o­log­i­cal cen­ter-point for jurispru­dence dur­ing that peri­od, the court did a lot of inter­ven­tion in terms of strik­ing down work­er-pro­tec­tive leg­is­la­tion, max­i­mum-hours laws, min­i­mum wage laws, union-rights laws, and laws out­law­ing yel­low dog con­tracts.

And this peri­od today is sim­i­lar. The core ide­ol­o­gy is real­ly the same, but the court can’t imple­ment it with the kind of puri­ty that it could imple­ment it dur­ing the Lochn­er era, because labor stat­ues are sit­ting there. The state­ment of pur­pose of the Nation­al Labor Rela­tions Act (NLRA) talks about inequal­i­ty, bar­gain­ing pow­er, and the need for full free­dom of asso­ci­a­tion of work­ers. So they have to deal with that. 

But you can see it in Epic Sys­tems. You can see right from the begin­ning of the opin­ion, Jus­tice Neil Gor­such is irri­tat­ed at the work­ers there for bring­ing a suit against their employ­er after they had agreed not to. So the idea here is that an indi­vid­ual work­er, you know, sits down with an employ­er and is in an equal rela­tion­ship in nego­ti­at­ing some­thing. Where­as, of course, as Jus­tice Ruth Bad­er Gins­burg says, in foot­note two of her opin­ion, it did­n’t hap­pen that way. The com­pa­ny just sends out an edict say­ing, “You either agree to this or you lose your job.” That’s the present-day ver­sion of the Lochn­er era, indi­vid­ual lib­er­ty of contract. 

In These Times: Beyond cas­es that deal direct­ly with the NLRA, what is the kind of lit­i­ga­tion that could come before the Supreme Court that would affect workers?

James Gray Pope: I don’t think any­thing’s going to be so much dif­fer­ent from the recent direc­tion. It’s just that it’s going to be more intense and con­sis­tent. What’s going to be an issue here in terms of what the court does, I think, is the extent to which Supreme Court Jus­tice John Roberts, who has some sense of his­to­ry and some con­cern about what the his­tor­i­cal ver­dict on his chief jus­tice­ship is going to be, is going to con­strain the court in the labor law area. I think he under­stands the need to con­strain the court in the civ­il rights area, and even some of the oth­er con­ser­v­a­tive jus­tices have issued sur­pris­ing pro-civ­il rights opinions. 

The Supreme Court is like any polit­i­cal body in the sense that you spend polit­i­cal cap­i­tal, and there’s an assess­ment: “Well, do we want to spend our polit­i­cal cap­i­tal on this issue? Are we going to spend it on that issue?” And that’s going to be the big ques­tion now that they’re going to have. If this nom­i­nee gets con­firmed, con­ser­v­a­tives are going to have a very strong major­i­ty. And they’re going to have the pow­er to trans­form the law immense­ly. And so the ques­tion is, where are they going to put their ener­gy? And my fear is not so much for labor law, because labor laws are fun­da­men­tal­ly weak any­way, but more in the area of vot­ing rights and gerrymandering. 

In These Times: How does the Fed­er­al­ist Society’s tex­tu­al­ist or orig­i­nal­ist tra­di­tion affect rul­ings on labor-relat­ed cases? 

James Gray Pope: Orig­i­nal­ism ini­tial­ly was a pure­ly con­ser­v­a­tive phi­los­o­phy where basi­cal­ly you imag­ine set­ting a time machine back and ask­ing the peo­ple who enact­ed the 14th Amend­ment, for exam­ple, “Well, did you intend to give women equal rights to men?” And that was the kind of method­ol­o­gy that’s now referred to by more sophis­ti­cat­ed pro­po­nents of orig­i­nal mean­ing as “orig­i­nal expect­ed appli­ca­tion,” where instead of going after the orig­i­nal mean­ing you’re going back and you’re going after the ways in which peo­ple in that his­tor­i­cal era would have applied the provision. 

One of the big prob­lems with orig­i­nal­ism is, what hap­pens if a body of prece­dent builds up that seems to con­tra­dict your view? In a way, the most dra­mat­ic illus­tra­tion is Supreme Court Jus­tice Clarence Thomas on the scope of the Com­merce Clause. And this relates to labor. Thomas thinks that the word “com­merce” is the Con­gress’s pow­er to reg­u­late inter­state com­merce, the word com­merce just means the buy­ing and sell­ing of things. And so, in his view, the deci­sions that upheld the Wag­n­er Act and the Nation­al Labor Rela­tions Act are wrong from an orig­i­nal­ist point of view.

Well, the prob­lem is that stare deci­sis—a judi­cial pol­i­cy that courts gen­er­al­ly fol­low ear­li­er rul­ings (prece­dent), some­times even when the ear­li­er rul­ings were erro­neous—is total­ly manip­u­la­ble: It’s a mul­ti fac­tor analy­sis that’s eas­i­ly manipulable. 

In These Times: Con­sid­er­ing the fact that labor law in the Unit­ed States is real­ly weak, and work­ers’ pro­tec­tions will like­ly be fur­ther erod­ed in the com­ing years, what are the ways that you might antic­i­pate unions or work­ers orga­ni­za­tions respond­ing to that land­scape, through the law or not?

James Gray Pope: Broad­ly, I would say that pol­i­tics are key. And what’s real­ly cru­cial is to get strong pro­gres­sives into elect­ed office, from which point they can pack the court. So if you want it to go through for­mal legal method mech­a­nisms, that would be the way to do it. And obvi­ous­ly, that’s an area that’s fraught right now with the ger­ry­man­der­ing opin­ion, the vot­er ID rul­ings, and Cit­i­zens Unit­ed guar­an­tee­ing the right of mon­ey to skew the polit­i­cal process. All of those things are going to make it very dif­fi­cult to break through. 

The last time this was a prob­lem was around the Lochn­er era, dur­ing which a lot of peo­ple were denied the right to vote, includ­ing not only African Amer­i­cans in the South, but also poor whites in the South, and women. So the demo­c­ra­t­ic process was skewed then as well. Ulti­mate­ly, what was cru­cial was mass resistance. 

And the strikes in 1934—that was the peri­od where you had gen­er­al strikes and threat­ened gen­er­al strikes in a num­ber of cities, bring­ing about the per­ceived pos­si­bil­i­ty of, if not rev­o­lu­tion, some­thing at least threat­en­ing the order. And that got the NLRA passed. And in my opin­ion, that’s what got the NLRA upheld as con­sti­tu­tion­al along with Pres­i­dent Franklin Delano Roosevelt’s threat to pack the Supreme Court with jus­tices sym­pa­thet­ic 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 Good­man Inves­tiga­tive Fel­low, as well as a writer based in Madi­son, Wis­con­sin, where she works at a restau­rant. She con­tributes reg­u­lar­ly to Isth­mus, Madison’s alt-week­ly, and The Pro­gres­sive magazine.


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Working people’s advocates mourn Justice Ruth Bader Ginsburg

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Supreme Court Justice Ruth Bader Ginsburg was not primarily known for her positions on labor issues, though of course many feminist issues are also workplace ones, and Ginsburg’s anti-discrimination work in the 1970s opened up new possibilities for women. In recent years, Ginsburg wrote powerful dissents to the courts’ conservatives’ support of forced arbitration, in which workers are required to sign away their right to a day in court as a condition of employment. She also got the chance to cast a vote for the rights of pregnant workers.

Advocates for workers stepped up to remember Ginsburg. 

From the AFL-CIO:

America has lost one of the greatest jurists in our nation’s history. Justice Ruth Bader Ginsburg spent her career defending the Constitution and the everyday working people who bring that document to life. She was a consistent, unshakable champion of civil and women’s rights and the freedom to form a union. The AFL-CIO, the labor movement and all those who aspire for dignity on the job are better off because of Justice Ginsburg’s service. Her passing leaves a hole in our collective hearts and a vacancy on the highest court in the land, and you can rest assured that America’s unions will honor Justice Ginsburg’s memory as we fight for our democracy in the days and weeks to come.

From the National Education Association:

Justice Ginsburg was a woman, teacher and tenacious fighter for equal rights for women and girls. She reminded us the only thing that keeps women from being on equal footing with men is to take ‘their foot off our necks.’ Truly the Notorious RBG, she showed us the power of dissent. In the landmark decision of Ledbetter v. Goodyear, she boldly wrote that what many of us know far too well and personally: women can be victims of sex discrimination, and we are far from achieving equal pay for equal work. In the power of the written word, Justice Ginsburg urged Congress to take up the issue.

From Pride at Work:

With the passing of Justice Ginsburg, America lost a champion for LGBTQ people, workers, women, and the ideals of equality and justice. Justice Ginsburg’s legal brilliance and work ethic made her more than just a popular hero for so many nationwide, it made her a force to be reckoned with.

From the American Federation of Teachers:

Justice Ginsburg is an icon. She leaves behind a legacy as a brilliant, hardworking jurist and a trailblazing feminist; her loss is incalculable. Long before she became notorious, she broke barriers most never even dreamed to approach. Her unfailing sense of justice reminded us of its awesome power, and her unbending sense of duty reminded us to remain committed to protecting our democracy, our Constitution and the rule of law. But it was her personal courage and resilience, especially in the face of illness, that reminded us just how much strength one single person can have.

This blog originally appeared at Daily Kos on September 19, 2020. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributing editor since December 2006. Full-time staff since 2011, currently assistant managing editor.


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Why Supreme Court Nominations Are One of the Most Important Issues for Working People

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Kenneth QuinnellThere’s a lot at stake in the 2016 presidential election. While U.S. Supreme Court nominations may not be the most headline-grabbing stories that come out of a presidency, they probably should be. With Supreme Court justices serving for life and having significant power in interpreting laws that affect our daily lives, the importance of court appointments cannot be overstated.

This election, in particular, could shape up to be one of the most important elections in terms of shaping the court in American history. After Antonin Scalia’s death earlier this year, Republicans in Congress have sworn to prevent a replacement from being chosen until after the election and have stalled President Barack Obama’s nomination of Merrick Garland for more than 150 days. In all likelihood, it will be up to the winner of the 2016 presidential election to choose Scalia’s replacement, be it Garland or someone else.

But that’s not the end of the story. According to a 2006 study by the Harvard Journal of Law and Public Policy, the average retirement age for Supreme Court justices is 78.7. As of the beginning of the next president’s term, three of the nine justices will be older than 80. Another will be 78. While those justices seem healthy and committed to staying on the court for the near future, Scalia seemed the same way before passing away at 79. It’s not outside the realm of possibility that the next president could literally appoint a majority to the court, especially if elected for a second term.

It isn’t necessarily the case that the appointment of one or two new justices will make a significant shift right away, but over time, replacing Scalia with a justice that is less of a right-wing ideologue has the potential to reshape many areas of American law—and, in particular, much of the law surrounding the rights and lives of working people. Here are six reasons that Supreme Court nominations are one of the most important issues in the 2016 elections:

1. Gerrymandering: With a case already moving its way through the courts, this one could come up soon. And it’s a big one. Ever wonder why the country keeps voting for Democrats for president, but Republicans control Congress? A key reason is gerrymandering, the process of drawing the district lines for congressional seats for partisan advantage. Currently, 55% of congressional districts were created to favor Republicans, compared to 10% drawn in favor of Democrats. That’s why, in 2012, when Barack Obama won re-election and a majority of votes for congressional seats went to Democrats (50.59%), Republicans managed to somehow get a significant majority of House seats (53.79%). In that cycle, 1.37 million more Americans voted for Democrats, only to see Democrats end up with 33 fewer seats in the House. If one spends any time reading constitutional law, they’ll find that the precedent is pretty strongly against this type of gerrymandering. A court appointed by Hillary Clinton would likely frown heavily on this type of manipulation of the electorate.

2. Voting Rights: In 2013, the court issued a ruling that shocked President Obama, legal scholars, civil rights groups and historians. The conservative majority on the court gutted the enforcement mechanism for the Voting Rights Act. This was almost immediately followed by states that were previously required, based on a history of discrimination, to get Department of Justice approval for changes to voting laws, passing a series of laws that made it harder for many, particularly African Americans, to vote. Republicans passed laws shortening voting hours, eliminating early voting and making it harder to register and harder to vote, among other new obstacles to people exercising their right to vote. Many of these laws have been rejected by courts, and it’s likely that the Supreme Court would look very negatively on them.

3. Citizens United: The court ruled that corporations can spend as much as they want to influence elections, as long as they spend it independently of campaigns. This led to tons of money flowing into elections and the creation of super PACs. Clinton wants this ruling overturned and said she’d appoint justices that would do so. Trump’s on the other side. Clinton-appointed justices are likely to take a stricter look at other attempts by corporations and the wealthy to have more influence on elections than the rest of the electorate.

4. Corporate Influence in Supreme Court Cases: A recent study found that between 2009–2012, the one entity most likely to get a hearing at the Supreme Court, out of all petitioners, was the Chamber of Commerce. The court was not only more likely to hear cases championed by the chamber, it was more likely to decide in favor of the corporate interests the chamber supported. The court also made it harder for citizens to engage in class-action lawsuits, making it harder for citizens to sue corporations like Comcast or Walmart for hurting working people or consumers and making it less likely those working people and consumers would win cases before the court. Additionally, in the notorious Hobby Lobby case, the court allowed some corporations a religious exemption, allowing them not to provide insurance coverage for contraception. Other anti-working people decisions in recent years involved making it easier for judges to dismiss cases earlier, without going to trial, and requiring some consumers to submit to arbitration, rather than going to court.

5. Workplace Fairness: A series of 5–4 decisions during the John Roberts Court era have come down against working people and their rights on the job. These rulings will be ripe for challenges once Scalia’s seat on the court is filled. Among the key rulings that are under scrutiny are those that make it harder to sue in cases of pay discrimination, make it easier to retaliate against and fire employees who report job bias claims, make it harder to prove age discrimination on the job, weakened the Family and Medical Leave Act, made it easier to promote “right to work” at a national level, weakened overtime protections, made it easier to dismiss wage theft claims and made it easier to fire public employees for public statements made in the course of their duties.

6. Deportations: Earlier this year, the court effectively killed an executive order from Obama that would have shielded as many as 4 million undocumented immigrants from deportation. It will likely be considered again under a new court.

Any number of other issues that affect working people could also come before the Supreme Court, including, but not limited to: education funding, Medicaid expansion, public funding of elections, solitary confinement of inmates, prison overcrowding and many other issues.

This blog originally appeared in aflcio.org on August 30, 2016.  Reprinted with permission.

Kenneth Quinnell: I am a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, I worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  My writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  I am the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.


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