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What we too often forget about the $upreme Court [1]
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Date: 2023-06-08
ICYMI, Jamelle Bouie at The NY Times had a rather interesting essay on what has been under-appreciated: the $upreme Court’s role in protecting wealth.
It is difficult to overstate the hostility of the Roberts court to organized labor and the rights of American workers. Under John Roberts, who became chief justice in 2005, the court has made it harder for workers to bring suit against employers collectively, limited the power of workers to hold employers responsible for discrimination on the job, ended the ability of public sector unions to require dues from nonmembers who benefit from collective bargaining and struck down a California law that allowed unions to recruit workers on the property of agricultural employers. In pretty much any given conflict between an employer and a group of workers, you can count on Roberts and his Republican allies on the court to side with the employer.
Bouie discusses how the current court has handed down a ruling with serious implications for workers engaging in a strike action.
..in an opinion joined by Roberts and Justices Sonia Sotomayor, Elena Kagan and Brett Kavanaugh, Justice Amy Coney Barrett held that unions are liable for damages during strikes under federal labor law when they take “affirmative steps to endanger” the employer’s property rather than “reasonable precautions to mitigate that risk.”
In other words, if an employer suffers damage for something like spoilage of a product because workers have gone on strike leaving no one to prevent something from going bad, the union can be held responsible for the damage.
Bouie points out where the Roberts Court is headed with this kind of legal reasoning:
In a separate concurrence joined by Neil Gorsuch, Clarence Thomas said the Supreme Court should reconsider its 1959 decision in San Diego Building Trades Council v. Garmon, which held that state courts are barred from handling claims concerning conduct that is “arguably” covered by the National Labor Relations Act. Under Garmon, employers must first receive a favorable ruling from the National Labor Relations Board if they want to sue a union for striking in state court. Tossing Garmon would bring labor law much closer to its pre-N.L.R.A. [National Labor Relations Act] status quo, when conservative judges treated union actions as little more than criminal conspiracies to harm employers. Justice Samuel Alito also filed a concurrence in support of the majority.
emphasis added
Why supposedly liberal justices went along with this ruling is not clear; Bouie speculates they did it to head off an even more punitive ruling that might have been handed down.
Bouie brings up an important point. Traditionally the Court has been a defender of wealth time and time again.
One point that must be emphasized is how, with its war on workers, the Roberts court is only acting in the Supreme Court’s historical capacity as an agent of capital. At times, the court has taken an expansive view of the civil and political rights of the American people. But it has rarely been a friend to the right of workers to organize and act in their own interests. In the decade before the passage of the National Labor Relations Act, for example, the Supreme Court under William Howard Taft issued rulings constraining the ability of unions to act and organize, subjecting union actions to antitrust law and upholdingrestrictions on speech that targeted unions and other pro-labor organizations. In other words, the Supreme Court is first and foremost the leading defender of property within our political order. And how could it be otherwise? The Constitution itself was written, in part, to protect the rights of property in the face of democracy and the spirit of egalitarianism. Even a more liberal Supreme Court than the one we have now would eventually find itself acting against labor, for the simple reason that the American political system was not built with the interests of workers in mind.
emphasis added
Bouie’s conclusion is that workers should not expect the helping hand of a Justice or a Judge in the struggle to shape the world into a more equitable system. While a lot of attention has been given to the Court’s decision to overturn Roe v. Wade, it should not be overlooked how the Roberts Court is tipping the scales in favor of money. Thom Hartmann’s post about it being time to investigate Ginni Thomas cites a decision that shows how it works.
For example, last week Thomas was the tie-breaking vote to gut federal protections for half the wetlands in America, putting the most ecologically diverse and fragile ecosystems in the country up for commercial and residential development. Lever News is reporting that this accomplishes a goal that Crow’s companies and the trade associations they’re members of have been working toward for years, perhaps even decades. They’ve spent millions on lobbying, court battles, and submitting Amicus (Friend of the Court) briefs in federal courts, including specifically advocating for the outcome Thomas assured with his tie-breaking vote in last week’s Sackett v. Environmental Protection Agency case. Earlier, Paul Blumenthal had written for Huffington Post about how Crow’s company might benefit if the Clean Water Act was gutted by the Supreme Court, in part because they had some huge development projects that were apparently waiting on the ability to pave over, build on, or erect next to wetlands that had federal protection: “In 2022, Crow Holdings Industrial sought authorization from the Army Corps of Engineers under the Clean Water Act for a warehouse development in Georgia that would result in ‘cumulative adverse impacts to 6.87 acres of wetland.’” Since the Sackett decision, those wetlands are presumably no longer a concern for Crow’s company. Time to make some money!
The key rulings by the $upreme Court that have gone a long way to gutting the power of unions are Citizens United and Janus, a One-Two punch combination.
While the 2010 Citizens United ruling that “the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations” would seem to benefit labor unions, in practice tilted the playing field in favor of the vast concentration of wealth that has overwhelmed the ability of labor to compete against their dollars.
Janus tilted things even more in 2018. Prior to that ruling, collective bargaining agreements allowed unions to collect dues from non-union members in exchange for negotiating pay and benefits, and lobbying on their behalf. “Under the Taft–Hartley Act of 1947, which applies to the private sector, union security agreements can be allowed by state law. The Supreme Court ruled that such union fees in the public sector violate the First Amendment right to free speech, overturning the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.”
It effectively slashed the revenue from dues that public sector unions collected by allowing ‘free riders’ to get the benefits of union actions without financially supporting them. (The National UE has an explainer on why free riders are not a good thing.) Combined with “right to work laws”, these legal decisions coming from the $upreme Court have helped keep labor from getting its fair share of the economy and boosted the power of the wealthy to bend government to serve their interests.
The good news is that public support for unions appears to be on the upswing. There’s still a ways to go to turn things around though.
Support for unions maybe be at a record high, but the number of those who can actually say they are members of a union are still quite low, when compared to decades past. The Bureau of Labor Statistics reports that as of 2021, the number of workers belonging to unions is at 14 million — or 10.3%. That is down from 10.8% in 2020. In 1983, the earliest year with comparable membership data, around 20% of workers were in unions, BLS said.
Follow the money will never not be good advice. That’s why I’ve been using “$upreme Court” throughout this essay as a reminder that the current majority on the court was put there by Big Money to serve Big Money — and as important as their culture war bias is, it’s a distraction from their main agenda.
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