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

A conversation with labor activist and legal scholar James Gray Pope.

Alice Herman

Seventh U.S. Circuit Court Judge Amy Coney Barrett speaks after U.S. President Donald Trump announced that she will be his nominee to the Supreme Court in the Rose Garden at the White House September 26, 2020 in Washington, DC. Chip Somodevilla/Getty Images

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 ‑age 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.

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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