by Joe Burns
In the last week, a flurry of decisions has thrust the Supreme Court on center stage of the nation’s political agenda. Interspersed with truly horrible decisions on voting rights and anti-discrimination law was a victory on the issue of gay marriage. While others have analyzed those decisions in more detail, here the focus is on the role of the Supreme Court in setting labor policy.
What these decisions collectively show is that the Supreme Court, at the end of the day, makes political decisions. By this is meant not merely that these decisions are somehow tainted by politics depending on your perspective, but that the essence of what the Supreme Court does is making political decisions. For a labor movement largely crippled by decades of unfavorable Supreme Court decisions, this understanding is crucial to labor’s revival.
In the last week, the Supreme Court has dominated the news with a series of decisions covering important topics ranging from gay marriage to civil rights statutes to anti-discrimination law. The negative decisions are easiest to see for what they are—blatantly political decisions reflecting a pro-business, right wing, racist agenda. In a decision making it harder for plaintiffs to sue corporations for civil rights violations, the Supreme Court adopted a restrictive view of who constitutes a supervisor, shielding employers from liability from those who exercise power on their behalf. In Shelby County v. Holder, the Supreme Court gutted a key component of the Voting Rights Act of 1965.
But even in two cases related to gay marriage, we need to be clear of the political nature of the Supreme Court decision-making. In Windsor v. United States, the Court ruled that the Defense of Marriage Act was unconstitutional. In another decision, Hollingsworth v. Perry, the Court conveniently ducked the issue of the constitutionality of California’s Proposition 8 banning opposite sex marriages on procedural grounds. To be clear, these are victories but victories based on years of activism by the LGBT movement, not gifts handed down by the Supreme Court.
The political nature of Supreme Court decision-making in this area should be readily apparent. For one, it is simply not conceivable that the Court would have made the same decision if presented the opportunity twenty, ten, five or even two years ago. The Constitution has not changed during this period—the words on paper are the same. If the Court was merely interpreting the Constitution or applying legal theories, when the case was decided would not matter. But, here timing is everything. For the Court was merely following shifting political winds rather than breaking new ground in the area of gay marriage.
One can further see that by the way the Court issued these decisions, ducking on the question of whether a California ban on gay marriage was unconstitutional and in the DOMA case not following the logic of their decision and requiring a non-discriminatory standard by applied across the board, an inconsistency pointed out by Scalia in his dissent.
A century ago the labor movement had a crystal clear understanding of the role of the United States Supreme Court. From the early 1900s into the 1930s, labor activists railed against not just unfavorable labor law decisions but against the very idea that judges should be allowed to intervene in labor matters. From conservative AFL officials or radical unionists, labor activists understood that courts were engaged creating in judge-made labor law. This activism finally resulted in the passage of the Norris LaGuardia Act of 1932, which stripped Federal judges of jurisdiction to issue labor injunctions save in very limited circumstances. This legislation was based on the idea that elite judges could not be trusted to set policy regarding labor issues.
Labor’s understandings during this period were paralleled by a school of thought penetrating elite legal circles in the first several decades of the 1900s. Embracing a set of ideas known as Legal Realism, these legal theorists rejected the idea that judges merely interpreted the law by correctly applying abstract legal decisions. Rather, Legal Realists, led by their chief leader, Oliver Wendell Holmes, charged that judges in reality made political decisions.
More important, this skeptical view of judicial lawmaking led to a strong sense of the illegitimacy of anti-labor judicial decisions. This understanding would prove crucial during both major periods of union upsurge—the 1930s for private workers and the public employee rebellion of the 1960s—when winning unionization of necessity meant defying court orders.
For today’s labor movement, having a clear understanding of the Supreme Court’s role in labor’s current crisis is crucial our revival. For as law professors Ellen Dannin and Ann C Hodges have explained in an excellent ongoing series in Truthout that all labor activists should read, the Supreme Court has judicially amended the NLRA over the last 80 years. We cannot understand or overcome the weakness of the modern labor movement with addressing the role of the judiciary in suppressing labor rights.
And more right wing judicial activism is likely coming with the Supreme Court agreeing to hear two important labor cases in the next year, on the Noel Canning case regarding recess appointments to the NLRB and the other an attack on employer neutrality agreements used as an alternative to the rigged NLRB process.
With the labor movement on the road to extinction, we need to once again ask ourselves how long we can allow unelected judges to set labor policy in the United States?