This article was written for publication in the Los Angeles-Orange County Building Trades News Magazine. I thought my readers would find interest in its content – with the backdrop of midterm elections and a contentious appointment to the Supreme Court of the United States
The Politics of the Supreme Court of the United States. How employee rights, and the framework that protects them, are not as important as winning elections.
Judicial review, and particularly the workings of ‘due process’ can be traced back to Magna Carta. The idea that the law could and should govern the world of men, and that just men would have recourse under just law, is a fascinating construct. From the time the barons confronted King John at Runnymede, -on June 15th,1215 – ‘egged on’ by the astute churchman Archbishop Stephen Langton, there has probably been no greater moment of lasting influence on western society. However, it is possible to derail the most important things, if politics are in the mix. As we know, King John complained to Pope Innocent III who, in effect, ‘shelved’ the whole thing by late August. It wasn’t until 1300 – a good 85 years later that much of the Great Charter was adopted into lasting law.
The Supreme Court is the only judicial body set up by the framers, allowing for such inferior courts “as congress may from time to time ordain or establish.” . Having suffered the ‘rude, popular, untechnical and summary’ judgements of English Colonial Courts, there was no high ideal, illusion or sanctity about the judiciary. They could and did trample a man’s rights as effectively as assuring them. When Chief Justice John Marshall gifted the American people with a new Constitutionally empowered ‘judicial review’, in Marbury vs. Madison, it really was a remarkable achievement. Remarkable, in three ways. In a hotly contested, dangerous political climate that would make todays machinations seem decidedly vanilla, Marshall sets up the court on apolitical and non-partisan ground. He authoritatively takes into the sole jurisdiction of the Supreme Court the right to ‘say what the law is’. He also makes it clear that political victory for personal causes has no place in the methodology of the court. If he were alive today to see the current court at work, he would be at odds with a group of people who – more often than not its conservative block – cannot keep their court non-partisan and apolitical. Who cannot say what the law is, so seemingly vacillating and capricious have been their opinions – and who cannot apply methodology that doesn’t accompany a personal, political victory. He would admonish them – not for what they have become, but what they refuse to be. A third and independent branch of government that is the safety net for the common man, and the Constitutional failsafe when Congress and the Executive have gone ‘belly up’.
During Chief Marshall’s years, the court had to establish itself as the arbiter of a flawed Constitution. The original framers did not consider anyone who was not a white, male landowner to be worthy of citizenship or the vote. It was not until Post Civil War Reconstruction that the legislature came into its own on a backdrop of a Supreme Court that was as infamous as it was embarrassing. The text of the 13th, 14th and 15th amendments absolved the courts from any part in decision making, with the addition of now familiar text. “Congress shall have the power to enforce, with appropriate legislation, the provisions of this article.” The enforcement clause expanded the power of congress, whilst diminishing the individual power of States. Which brings us to the rights of the individual, the rights of that individual to expect certain things, and the rights of that individual to not face diminishment, once recognized.
Employee rights, labor law, the NLRB/NLRA, the FSLA, the DOL, the thousands of pieces of legislation that support collective bargaining and the right to organize, the dignity of work, social justice, the fabric of society and, yes, life as we know it, extends from the idea of individual rights granted to us by the Constitution. We habitually fight and wrangle over what the details in the document mean. Whether one sees it as a living document that will answer the call of generations yet to be born, or as a magnum opus that is a done deal, applying only to what the 18th century mind knew and recognized. The first is the experiment of ‘striving towards a perfect union’ and recognizing an incomplete task ahead for our progeny. That is already obvious in the historical shaping of the modern United States. The other view is restrictive only because it is the only recourse for the backward looking sentiment of preserving the ‘good ole days’ -which, depending on your vantage point, were far from ‘good’. It is worth remembering that the intent of the Constitution and the plenary power from which all the Articles derive their purpose, lies in the preamble.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[sic] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America
Why would the conservative majority at the Supreme Court be opposed to these common goals, when the reason they have a job at all is to safeguard the promise extended in the text.
The original premise of my thesis was to trace the shifting stance of the court, especially towards rights under labor law, especially employee rights and individual rights, which have seen considerable diminishment in a steady and calculated way. I expected that I might cite Abood vs. Detroit that set up Union Fees over 40 years ago as an administrative necessity. (Though there were sceptics on the court at the time, they didn’t make their view public. Abood was a unanimous decision.) I could talk of the 12 cases in recent years where the Supreme Court, in every instance but one, reversed circuit court decisions – from all over the country, not just liberal areas – to undercut and undermine the safeguards of the NLRB, acting through the NLRA. There was Busk vs. Integrated Solutions, where workers could not consider an extra 45 minutes to clear security at the end of the day, as part of paid work time. However, it must be pointed out that Justice Thomas, who wrote the opinion, was joined by a unanimous court in which the liberal justices concurred. California has since adopted various State measures that address the issue of what constitutes working and breaking hours at your place of employment, and certainly it will be State’s Laws – if any – that redress some of these partisan concerns. A historical perspective shows that the law and its application have always swung back and forth, with pendulum regularity. However, there is a different type of activism at work.
It is worth looking a little closer at one particular case from this year. Many readers will remember Janus vs. AFSCME – a decision that was handed down on the same day that Justice Kennedy announced his bombshell retirement and subsequently, the case may not have got the coverage it required. In Janus vs. AFSCME, the Supreme Court didn’t just reverse 40 years of understood precedent in labor law. It didn’t just deliver a blow to Union finances. It didn’t just pretend to review a pressing case where harm could be remedied. It didn’t just pretend to take a case to settle controversy at the Federal Circuit Level. It didn’t just side with pro-employer/anti-union sentiments, in yet another Labor Law case. It didn’t just continue a labor busting trend it has followed since 1975. All these things, one might explain, argue or shrug away.
What is galling is the partisan sentiment running through the protocols and the decision. Janus would never have come before the Court, if the Justices hadn’t broken their own rules to hear the case. The original case brought by the Governor of Illinois had no standing, because he could not demonstrate the ‘personal harm’ remedied at the Supreme Court for a petition for the ‘writ of certiorari’ to be granted. It continued through partisan tactics – renamed for Janus, with deliberate legal maneuvering. Janus was not, and still is not, a First Amendment Issue – so the Strict Scrutiny rules that force the Court to take the case because fundamental freedom is at stake, is spurious at best. The merits of the case had already been tried and decided 4-4, in Friedrichs vs. California Teachers Assn. – which the court stated it would not take up again, perhaps to hide its true intentions the moment Scalia’s seat was filled. Since Justice Alito’s confirmation to the court in 2006, there has been an incremental but consistent effort to reverse Abood, notably in 2012 and 2014 which helped to set up the false premise for a First Amendment case. So why did the court need to revisit this issue so frequently with such insistence. In a word – Elections.
To defund unions just before midterms is as deliberate a pro Republican political ploy as the ruling in Citizen’s United. It’s not that corporations are to be treated as individual people, with the same rights and obligations under the law. An expedient, politically biased ruling that is at odds with the originalist conservative interpretation of the Constitution. Having your cake and eating it. If the Court hadn’t completely lost all perspective in that ruling, they were simply doing their unabashed maneuvering for a political win. A private corporation was allowed to air a film, days prior to the 2008 election lambasting the reputation of a prominent political opponent, but unions were forbidden by electioneering law, to have any pro agenda publication printed and disseminated 30 days prior to election day. The Republican version was guaranteed as free speech, the Democrat version was – a denial of the same ‘free speech’ construed as an infraction of election law.
In both cases, Janus and Citizens United, the use of the First Amendment is troublesome and irreverent. If one considers the real freedom guaranteed under the First Amendment, for which countless men and women have given what Lincoln referred to as the ‘last full measure of devotion’ – and to ‘weaponize’ it, as Justice Kagan remarked, for political gain, is to be in violation of the Constitutional Oath. Preserving, protecting and defending the Constitution is not an option for any lifelong jurist, never mind a Justice of the Supreme Court. The short-term game in both cases, greatly improved the prospects for GOP politics, readily admitted by everyone involved. One put unnamed, vast quantities of private money into elections, and the other removed financial opportunities from the rival party through ‘vox populi’ organization. It had nothing to do with the facts cited in each case. It had everything to do with winning elections. There is a miscalculation that has yet to play out. Whereas, granting personhood to a corporation is putting your whole arm on the scale, the Janus posturing has just propelled the Right of a Union to Collectively Bargain and the Right of an Employee to join an organized bargaining unit, from subset text in labor law, to a First Amendment Right. Did Janus’ lawyers not think that somewhere between Due Process and Equal Protection, that the Defendants reasoning and claims in a case might also transfer the same reasoning, claims and powers to the Plaintiff?
If the pattern one sees sounds so familiar that we have become numb to its presence, it’s part of a bigger picture. This is not a partisan comment. In his eminently readable book – “Six Amendments and Why We Should Change the Constitution” – Justice John Paul Stevens cites among other things, the practice of gerrymandering, and blatant voter suppression – activities as obvious to everyone, as it is to those who are engaged in it. The Hispanic community of Dodge City, KS, or the original residents of this land, who by an Act of Congress in 1924 were granted plenary Citizenship, have the right to govern themselves in tribal council, and should never be asked for their identification just on a point of karma – or the Hispanic and African American communities that suffer disproportionately in the work place, in society, in the criminal justice system, and in their personal rights guaranteed under the 14th amendment, by systems and protocols that are designed to disenfranchise. African Americans and Hispanics who are union members earn 15 percent and 10.8 percent more than their nonunionized counterparts. (Economic Policy Institute) The catastrophic societal impact of Union busting goes far beyond – employer/employee relations, and is typically infused with racial overtones.
The Court’s stance against Unions is actually not against the idea of collective bargaining, or any long-decided precedent of labor law. In fact, their record favors, first the employer, then the union, and then the individual’s rights. Those workers who are part of a public or government union have the least rights and the least method of recourse. However, it is much more pernicious than that. How can one politically preserve the false narrative of the 1950’s white, male dominated America – if the numbers are stacked against it, and the promise of the Constitution has not only welcomed and rejoiced in immigrant success stories, it has led – twice in our history– to civil rights organizations, of which I consider Unions to be a part. The elephant in the room is the racial divide.
According to a study released earlier this year by the Illinois Economic Policy Institute, annual economic activity in the US will drop between $11.7 billion and $33.4 as a result of the ruling in Janus. The erosion of Union strength will have a ripple effect that will impact the efficiency and the bottom line for employers as well, and as always, weakening unions disproportionately weakens the position of immigrant communities and minorities. The short term, political win is more important than the reality of life, in exactly the same way that ignoring climate change because it’s a party agenda item, and not relating it to the cost of rebuilding vast portions of the East Coast and the Gulf States every two years, is because winning is more important than the truth. It’s hard to quantify the numbers because we don’t know what impact a particular storm will have, but the trend is clear. Suffice it to say that since 2015 alone there has been over 300 billion dollars lost to hurricanes, floods and wild fires. 300 billion would put 13.5 million students through four years of college for free. You can decide what’s what.
Here’s a truth for those who feel the supremacy of white skinned humans is at stake. Anthropologists will tell you that during a near extinction level event for our species, the human population was down to about 40,000 and we had not migrated off what is now recognizable as the African continent. Everyone alive today is descended from 40,000 Africans, the pigment of their skin changing as they adapted to cooler northern climes. Politics of division will always find a way of taking facts that empower us and rewrapping them in deceit and hidden agenda. Its most successful constituents will always be those who don’t put a premium on truth and information.
There is a silver lining. The record shows that despite a conservative trend since the Warren Burger court, the tendencies have not been as extreme as they might have been. I suppose that ‘we the people’ have made their preferences known.
The Court has had a conservative majority since 1975. The original Ronald Reagan Conservatives, like Stevens, O’Connor, Souter, – are an extinct creature. The recent appointments to the bench are the hallmark of the times. The less credentialed, the less schooled, the less finessed, the more chance of political victory.
The last GOP appointment to the Court with gravitas worthy of it, was with the appointment of the current Chief, John Roberts, who may well inherit Justice Kennedy’s swing vote. The less gravitas a justice may have, the more he or she may come under the sway of a powerful chief. As a keen student of history, Roberts is also likely to see his tenure in terms of reputation and legacy.
In general, the GOP has had some extraordinary opportunities to pack the Supreme Court – the confirmation of Justice Kavanaugh, being the latest in a series of plays that prove their position. Winning, winning by any means necessary, and winning to remain in power, is the only thing that matters. Speaker Gingrich first introduced the pathetically low brow idea of demonizing and dividing the electorate as the only way for a minority to win power. Well learnt, and now habit formed and hard in cement, the damage done to the fabric of the nation and to the workings of government are inestimable. The United States Senate – a body of supposedly one hundred ‘elder statesmen’, whose very role was to build consensus, govern as part of the advisory branch to the Executive and save us from our worst demons, lies in partisan tatters. The ones that did cross the aisle to govern in the best interests of all the people are long ousted. We will long remember Senator McCain. We should remember what he was saying with his last breath. Whereas the Court may not have the Gingrich infection, its recent appointees are products of it. There is hope that the current processes will adjust, and that the congenial atmosphere of the court, the friendships that grow across the aisle, the respect for jurisprudence, and the large percentage of cases decided 9-0 – which are not widely celebrated, because they don’t make compelling headlines – will prevail.
There is another heartening piece of evidence. As justices age, they lean left. The ones that are already liberal, continue to lean left. Conservative justices, without exception, lean left as they go through their tenure on the court. The graph below shows the trending lines going diagonally from top left to bottom right. This left leaning trend is so starkly evidenced here as to suggest that the court would be well tended, even in its most controversial moments. But there are political aberrations. We would have thought the Court would never countenance decision making like Dred Scott or Korematsu, yet, Trump vs. Hawaii, the travel ban openly targeting Muslims, is no different at all to the worst impulses in both the earlier cases. Was it a nod to Federalism, or was it the need to win elections?
Today’s politicians rely on a 10 second environment – shallow, intemperate, exaggerated and a monument to uninformed thoughtlessness.- Far from preserving, protecting and defending the constitution, an oath they have all taken, they allow for the deliberate erosion of justice, the fanning of domestic strife, the dismantling of equitable common defence, the dissolution of general Welfare, and the curtailing of liberty. With the backdrop of midterm elections and the environment in which we find ourselves, the factors that govern labor law and employee’s rights must be seen through a wider lens, if we are to fully comprehend not just what has happened, but how to fix it. ‘We the people’ should not need politicians, the media, or polling data to endorse matters of conscience or matters decided by a personal moral compass. ‘We the people’ might do well to demand that the government return to being a republic instead of a regime.
My very best for the coming holidays!