The Anti-Worker Court

One of the problems that a lot of very smart liberals are facing is what is to them a stunning realization–no one cares about policy. They thought that if you got more people to vote, they would vote for liberal positions because polling suggested they supported those positions. Then record numbers of people voted and they came out basically exactly like everyone else. Then liberals suggested running on policy issues, but as we saw from the debate this week, Biden can lay out policies, but the fact that he is old is the only thing anyone remembered. Policy bores people. Vibes, that’s what matters, not to mention completely random things that they attribute to the president. I’ve joked that people are blaming Biden for TNT losing the NBA, but it’s not far off given the number of people who support abortion thinking Biden is responsible for the overturning Roe.

So when I read Stephen Greenhouse’s excellent summary of how the Supreme Court is Lochner-esque in workers rights and how voters don’t know this, I’m like, yep and they don’t care either, the realization of which is Mitch McConnell’s most important contribution to American life (in his case, it’s that no one blames the Senate for anything, but same thing). They can say they support unions and they do, in abstract. It does not mean that they can add 2+2.

While the court is decidedly pro-corporate, most Americans probably don’t know just how anti-worker and anti-union it really is. The justices have often shown a stunning callousness toward workers, and that means a callousness toward average Americans. One of the most egregious examples was a 2014 ruling – with an opinion written by Thomas – that held that Amazon, which holds workers up to 25 minutes after the ends of their shifts waiting to be screened to ensure they didn’t steal anything, doesn’t have to pay them for that time.

Or take this month’s decision in which the court ruled in favor of Starbucks by making it harder for the National Labor Relations Board (NLRB) to win rapid reinstatement of workers who are illegally fired for supporting a union. In that case, Starbucks fired five of the six baristas who were heading an effort to unionize a Memphis Starbucks. After NLRB officials found that the workers had been fired unlawfully for backing a union, a federal judge agreed to the NLRB’s request to issue an injunction to quickly reinstate them. Many labor relations experts say it’s important for the NLRB to be able to win quick reinstatement after companies fire workers who lead unionization drives, as Starbucks has repeatedly done, because those firings often terrify co-workers and cause union drives to collapse.

Writing the court’s majority opinion, Thomas ignored all that, oblivious to the injustices and suffering that many workers face when they exercise their right to form a union. Thomas said that federal judges, when issuing such injunctions, should follow a more exacting four-part test, rather than the worker-friendly two-part test the NLRB favored. Thomas’s opinion also ignored some glaring facts: the union has accused Starbucks of firing 150 pro-union baristas, and the NLRB has accused Starbucks of an astoundingly high number of violations of the law – 436 – in its efforts to block unionization.

In contrast to Thomas, Ketanji Brown Jackson, in a partial concurrence and partial dissent, acknowledged the injustices and delays that pro-union workers often face. She wrote that “Congress, in enacting the National Labor Relations Act, recognized that delay in vindicating labor rights ‘during the “notoriously glacial” course of NLRB proceedings’ can lead to their defeat”. Jackson noted that the litigation over reinstating the Memphis baristas had dragged on for two years. (It was dismaying that Justices Elena Kagan and Sonia Sotomayor signed Thomas’s soulless, unsympathetic majority opinion rather than Jackson’s.)

A 2022 study found that of the 57 justices who have sat on the court over the past century, the six justices with the most pro-business voting records are the six members of today’s 6-3, rightwing super-majority, all appointed by Republican presidents: Thomas, Alito, Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The study found that Donald Trump’s three appointees – Gorsuch, Kavanaugh and Barrett – were the three most pro-business justices of the 57 evaluated. (That study also found that the court’s Democratic appointees at the time – Kagan, Sotomayor and Stephen Breyer – were among the top 20 pro-business justices.)

All this is a far cry from when some justices were true champions of workers. Arthur Goldberg had been the general counsel of the United Steelworkers and served as secretary of labor under John F Kennedy. Justice William J Brennan Jr, whose father was a union official, was famous for going to bat for workers. As a lawyer, Louis Brandeis filed famous, detailed supreme court briefs in cases that sought to uphold pro-worker laws.

To really have the juice to go after the Court, you need public support to do so. And to get that public support, you need the kind of political education through institutions that have completely fallen apart for liberals. From the union hall to the church to the bowling alley, we have simply disbanded every institution that brought disparate people together in ways that could either be teaching moments or simply to have civil conversation. I have no idea how to bring that back, but without bringing back institutions, I don’t see how we chip away at the complete disconnect so many voters have with the reality of how power works in Washington. One can see how a rager like Trump can take advantage of this plum ignorance.