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Tag: "Supreme Court"

The New Gilded Age Court

[ 13 ] January 25, 2016 |

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Above: Chief Justice John Roberts

Allow me to expand on Scott’s point from earlier about the Supreme Court becoming the postbellum Democratic Party incarnate. I’d say it is further than that. The current Supreme Court is the recreation of the Gilded Age courts. The same courts deciding Plessy and all the other cases of the late nineteenth century and early twentieth century that approved of Jim Crow, flushed the Civil War amendments down the toilet, stole land grants from Mexican-Americans, and took away any and all rights from Native Americans were the same courts providing new rights to corporations and deciding cases like Lochner.

Today, the same court once again flushing those Civil War amendments down the toilet is the same court that decided Citizens United and is about to kneecap organized labor in Friedrichs. Never mind that a lot of states like having functional public sector unions. In fact, never mind any evidence. This is about conservative ideology, as are the racial cases. The turn against Reconstruction is the just part and parcel of the larger turn against the 150 years of reform. Other parts are the turn against the Great Society, the turn against the New Deal, and the turn against the Progressive Era. The New Gilded Age is not hyperbole. It is the stated goal of the conservative movement. And they have enough judges on the Supreme Court and of course enough state legislatures and governors to see that increasingly ensconced into American law.

In other words, H.A. Goodman and Walker Bragman are totally right about the 2016 election and if the Democrats nominate Hillary, the nation would be better off with Ted Cruz.

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One Person, One Vote

[ 79 ] December 14, 2015 |

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I am more than a little skeptical about the Supreme Court rejecting the openly racist arguments in Evenwel v. Abbott reinterpreting the definition of “one person, one vote” to exclude non-citizens, children, prisoners, and all people not eligible to vote, as if they aren’t affected by our government. Please don’t be shocked this challenge is coming out of Texas. This blatant Republican attempt to roll back the diversity they fear is just another step on their road to reestablishing a publicly white supremacist nation. Like most everything else, it looks like a vacillating Kennedy is the only hope and this will probably at least open the door to more challenges to representation for the many people Republicans don’t deem worthy of it.

I guess the biggest chance this gets held off is that if we throw out counting everyone for representation, what actually replaces it is unknown and that would open a huge can of worms. Do I think that these Republican judges will let that get in the way of their own political preferences? No, not really.

Labor Picketing

[ 19 ] June 24, 2015 |

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This opinion piece by Catherine Fisk and Edwin Chemerinsky is quite interesting. Did the Supreme Court accidentally set a precedent to eliminate bans on labor picketing?

Reed v. Town of Gilbert’s reasoning makes it clear that restrictions on labor picketing can no longer survive First Amendment scrutiny. Sections 8(b)(4) and 8(b)(7) of the National Labor Relations Act prohibit speech, including peaceful picketing, if a “labor organization” or its agents is the speaker and based on the message. Section 8(b)(7) prohibits picketing urging workers to join a union or employers to recognize one if the picketing lasts longer than “a reasonable time” not to exceed 30 days. Thus, the National Labor Relations Board’s enforcement arm sought to enjoin workers affiliated with Organization United for Respect at Walmart (OUR Walmart) from picketing with signs saying “Stand Up, Live Better,” “Walmart, respeta a los trabajadores” (Walmart, respect workers), and “Let Walmart Associates Speak Out.” And under 8(b)(7) fast food workers can picket outside restaurants with signs asking to be paid $15 an hour or that the city adopt a $15 minimum wage ordinance, but they cannot picket for more than a reasonable time urging workers to demand $15 and a union. Section 8(b)(4) prohibits picketing urging secondary boycotts, and thus prohibits members of a labor union from picketing at a retail store urging a boycott of the store because its low prices are the result of low wages paid by a subcontractor that produces goods sold in the store or that operates the warehouse whence the store’s goods are shipped. But a store employee would be allowed to picket to urge customers to shop at the store because of its low prices.

The 8(b)(4) and 8(b)(7) restrictions on picketing clearly violate the First Amendment as the Court interpreted it in Reed v. Town of Gilbert. They prohibit speech based on its content because they, as the Court explained, “single[] out specific subject matter for differential treatment.”

Therefore, the picketing restrictions in section 8(b)(4) and 8(b)(7) can be upheld only if they are narrowly tailored to serve a compelling governmental interest. In Reed v. Town of Gilbert, the Court assumed for the sake of argument that the government has a compelling interest in regulating aesthetics and traffic, but rejected the Town’s contention that the regulations were narrowly tailored to protect the Town’s aesthetic appeal or traffic flow because the law was under-inclusive – it allowed signs with some messages but not others. The government might argue that 8(b)(4) and 8(b)(7) serve the compelling interest of preventing unjustified work stoppages and consumer boycotts. Eliminating work stoppages and consumer boycotts is, in our view, not a compelling governmental interest. But even if it were, prohibiting picketing is both overbroad and under-inclusive. Any group other than a labor organization is free to urge a consumer boycott or that workers strike to demand higher wages, and even labor organizations are allowed to use leaflets (rather than picket signs) to urge boycotts or strikes. The picketing prohibitions are under-inclusive if the goal is to eliminate encouragement of boycotts and strikes. And 8(b)(4) and 8(b)(7) are over-inclusive to the extent that they prohibit peaceful advocacy rather than actually striking or boycotting.

I guess my views on this are like my usual belief about the Supreme Court–that the justices will create ways to enforce their own personal political preferences. This is quite the development and may create a path forward but it’s hard for me to believe that Clarence Thomas and Antonin Scalia care one whit for precedence when it might help a labor union.

This Day in Labor History: February 24, 1908

[ 21 ] February 24, 2015 |

On February 24, 1908, the Supreme Court issued its decision in Muller v. Oregon. This landmark decision upheld the idea that, at least for women, laws restricting the hours of work were constitutional. This would be a major victory in the long fight to bring working hours down to eight hours nationally, a dream that had already extended for more than two decades and would not be realized for another thirty years. It also created gender inequities in labor law with implications that continue today.

In 1903, Oregon had passed a law limiting the hours of women to ten hours a day and sixty hours a week. Curt Muller, a laundry business owner in Portland, sued the state. Muller believed, for good reason given the predominant legal climate of the time, that he signed legal contracts with individual workers when he hired them and that those workers freely agreed to the terms of hours and wages when they took the job. Yet, these ideas were increasingly challenged during the Progressive Era, as activists sought to create a more fair America that protected basic rights of workers to a decent life. This was especially true for women workers, who many Progressives saw as both uniquely exploited and mothers responsible for raising the next generation of Americans. Progressives argued that whatever the merits of the freedom of contract interpretation of labor legislation, the state had a unique interest in excepting women from that principle. Progressives were especially prominent in states like Oregon, as well as Wisconsin and Washington, which would see the first workers’ compensation legislation a few years later. The Oregon Supreme Court upheld the the state’s law and Muller then appealed to the Supreme Court.

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Laundry workers

Supporting Oregon’s case was Louis Brandeis, who filed a lengthy brief, mostly created by his sister-in-law, Josephine Goldmark, an activist with the National Consumers League, about women’s working conditions and lives, helping to sway the case. Brandeis employed this paternalistic ideal of women as mothers to justify upholding the law because the state had an interest in the health of future generations of Americans. He used four specific arguments. First, women were physically different and weaker than men. Second, damage to women’s health on the job might affect their reproductive capacity. Third, the health of children might be damaged if the mother was overworked. Fourth, long workdays deprived family members of their wife and mother.

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Louis Brandeis

The Court ruled unanimously in favor of the law’s constitutionality. David Brewer wrote the opinion. Part of the reason this was such a landmark decision was its partial repeal of Lochner v. New York , decided just three years before. Lochner invalidated state laws on the hours of bakers and thus hours legislation nationwide based on the idea of the liberty of contract that it read into the 14th Amendment. But Brewer was clear that this was no rejection of Lochner. Rather women were different than men and thus deserved protection:

That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

In short, the justices had a gendered construction of freedom of contract. They held to the Gilded Age belief that individual male workers freely signed agreements with employers (thus making labor legislation unconstitutional because it would violate that freedom of contract) but for women workers the state’s interest was greater than this freedom. This was not completely unprecedented however, for as early as 1876, the Massachusetts Supreme Court had founded similarly, as had several additional states between then and 1908, although Illinois had overturned a law restricting women’s hours that applied freedom of contract to women as well as men.

The legacy of Muller is complicated because of the paternalism at its core. It fit the ideals of many Progressive reformers, who used ideas of femininity and motherhood to protect women and children in a number of ways, but especially at the workplace. For people like Jane Addams and Florence Kelley, these sorts of decisions were validations of their larger campaigns to protect poor women from the ravages of industrial life. But the small more explicitly feminist movement disliked the decision because it created artificial differences between the sexes.

Still, placing Muller in the context of the time, we should see it as an important victory because of its precedent setting approval of hours laws for anyone. Lochner reinforced the idea so prevalent in American business that corporations had no responsibility to anyone and that the halls of Congress and federal courtrooms would reinforce this if necessary. Even if Muller was sexist, for a lot of labor activists getting these principles applied to women laid the groundwork for all workers, which may not have been the goal of all Progressives, but was for labor activists. Establishing this principle did indeed start chipping away at the freedom of contract idea and within a decade, many industries would have 8-hour days.

States followed up on Mueller by passing night work laws for women to ensure they were not laboring during hours deemed by the state to be hours when they should be taking care of their children. Between 1909 and 1917, 19 states passed new legislation limiting the hours of women’s work, leaving only 9 states in 1917 that lacked any restrictions at all, a number that decreased to 5 by the mid-1920s. However, in most if not all of these states, the laws did not cover domestic or agricultural workers. The decision itself was rendered irrelevant by the Fair Labor Standards Act in 1938 since it provided equal coverage for men and women. Yet gender inequities on the job have never fully been overcome, not even though Title VII of the Civil Rights Act of 1964. The struggle for real equality on the job continues today.

I relied on Andrea Tone, The Business of Benevolence: Industrial Paternalism in Progressive America and Nancy S. Jackson, “Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract” in Labor History, September 1989.

This is the 133th post in this series. Previous posts are archived here.

Court Commentary Roundup

[ 23 ] July 1, 2014 |

Few pieces that you should be reading about yesterday’s terrible Supreme Court decisions.

First, Sarah Jaffe on how the two cases are interlocking:

We’ve long known that low-wage workers have very few rights on the job, that their bosses are able to interfere in all sorts of personal decisions. In this case, it’s the particular nature of the benefit denied that is worth exploring for a moment. Eileen Boris, author with Jennifer Klein of Caring for America: Home Health Workers in the Shadow of the Welfare State, has noted that particular ideas of “intimacy and dirt” influence how we think about home healthcare workers and the work they do, which often involves exposure to bodily processes that are extraordinarily intimate. In the case of contraception, too, we see ideas of intimacy and dirt coming into play—sexuality is dirty, and intimate decisions can in part be influenced by one’s boss. By ruling, in theory, that the state cannot make an employer provide health insurance that covers birth control, or require that homecare workers pay the costs of their representation to the union, the court is in fact weighing in on the intimate relationships of thousands of workers.

Justice Elena Kagan, in her dissent to Harris, pointed out that the care provided by homecare workers is better when the workers are valued and paid better—things that have happened since they have had the right to union representation. In this way, she argues, the interests of the workers and the care recipients are not in opposition, as Alito’s opinion implies—they are actually aligned. The statement of Hobby Lobby’s CEO on raising wages indicates that Hobby Lobby, too, understands that workers do a better job when they are properly cared for. That includes, or should include, the right to make their own healthcare decisions, when it comes to contraception or anything else.

The conservatives pushing both of these cases would have you believe that these are cases about freedom—the freedom to avoid a union, the freedom to practice religion. And yet what they wind up being about is reducing power on the job for thousands of mostly women, mostly low-paid workers across the country.

Attacks on all workers’ rights often come first through attacks on those deemed less important workers. When we decide that birth control isn’t a pivotal issue because it only affects some workers, or that homecare workers’ loss is not a loss for us all, we leave the door open for the next attack.

And so, in a country where these feminized personal service jobs are increasingly the only jobs available, the court continues to rule that workers’ rights are less important than the bosses’, that protections on the job are a luxury working-class women can’t afford.

Second, Moshe Marvit on the implications of Harris.

In Harris, the majority implied that it was not the objecting employees that were the true free-riders, but rather the union. The decision focused on the fact that hourly rates were set by Illinois law and there were significant statutory restrictions over what the union could bargain over. It highlighted the fact that the union received dues for its representation, but questioned what negotiations or grievance representation the union could deliver to employees.

In effect, this analysis places unions in a bind: any reasonable observer would conclude that the union negotiated with the state to set the terms of compensation, benefits, and other terms of employment, which are then codified into law. However, because the Supreme Court has demarcated this activity to the realm of lobbying, which is beyond the strict scope of representation, it concluded that the union is in effect collecting dues for doing little. The majority has drawn an untenable distinction and then complains that the distinction is not tenable.

Toward the end of its peculiar analysis, the majority articulates a new and dangerous standard or test, which surely will open the doors to future problems. “The agency-fee [or fair share] provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.” In effect, the Court is requiring unions to prove a counterfactual, that the workers could not have achieved the same benefits it received from the union through any other means. The Court concludes that “no such showing has been made.” However, it is not clear how anyone could make such a showing. Justice Elena Kagan, writing for herself and three other dissenting justices, proclaimed that the good news with this case is that the majority did not overturn Abood. However, if the majority’s new test is a prerequisite for fair-share agreements, it may have done irreparable damage to the balance created by Abood.

Finally, I have a little piece at LaborOnline that summarizes the points I made here yesterday.

The SCOTUS War on Women and Workers

[ 130 ] June 30, 2014 |

While today’s pair of horrible decisions might seem like distinct issues, in fact they are both part of a larger war on women and workers.

The absurdity of the Hobby Lobby decision (only contraceptives are exempted for religious beliefs because of sluts) is obviously part of the Republican war on women, but it is also very much a war on the poor. An IUD costs about a month’s worth of wages at the minimum wage. If an executive can’t get birth control because her employer gets too hot and bothered thinking of her having sexy time, she can afford it on her own. A Hobby Lobby floor worker? Probably not. For women workers at closely held corporations, this decision will be devastating.

The Harris case is specifically about home care workers in Illinois. Who are home care workers? Women. Poor women. Lots of African-Americans, lots of Latinos, lots of undocumented workers. Home care workers are a major emphasis for SEIU right now; a close friend of mine has spent over a decade on a campaign to organize them in one city alone. Harris threatens all of this. But moreover, it shows how little Alito and the boys care about rights for women wherever they are. It’s hardly coincidental that this case comes down the same day as the contraception mandate. The Court evidently believes that the home is not a workplace, but of course it is a workplace, especially if someone is getting paid to do work. That it is women working in the home, as it has always been, just makes it easier for conservatives to devalue that work.

Of course, it’s about more than just working women and it opens the door for Alito and Roberts’ continued desire to mandate the New Gilded Age, so no doubt we will see new challenges to public sector unionism that will probably reach the Court in 2016 or maybe 2017 at the latest. I am not a legal expert, but my guess as to why Abood wasn’t overturned entirely is that there wasn’t 5 votes for it yet. Regardless, both of today’s decisions are very much about keeping working women without power both on the job and at home.

Also, when we hear in 2016 that both parties are the same because of [insert pet issue here] and therefore vote for vanity third party candidate, let us remember this day and these decisions. If you think Strip Search Sammy Alito and Ruth Bader Ginsburg are the same, you might want to rethink your positions.

Speech

[ 74 ] May 5, 2014 |

Scott may have more on this later, but the fact that Supreme Court justices’ opinions on free speech correlate with whether they agree with the speech is like the least surprising thing ever. I’m amazed that anyone has ever seen SCOTUS justices as somehow above politics and acting on actual constitutional principles that don’t line up and reconfirm their own personal beliefs.

And yet, here is genuine surprise from experts:

Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”

The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects “freedom for the thought that we hate.” On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.

“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” Professor Epstein said.

Why on earth is that stunning? I think a lot of people have blinders on about the Court that somehow these people are not as political as they actually are.

Rare Not Horrible News on Labor from the Supreme Court

[ 10 ] November 14, 2013 |

I was not looking forward to the new Supreme Court term. There are two major labor cases on the docket. Given the plutocratic nature of the 5 Republican members, I was not confident. And while I’m still not, there was surprisingly hostility throughout the Court for the plaintiffs in Mulhall v. Unite-HERE Local 355. This case challenges the constitutionality of card check agreements between business and labor for unionization, calling them a violation of the National Labor Relations Act as they are a “thing of value,” something that would make a card check a felony for those involved since it would basically be a bribe.

Like myself, Josh Eidelson was extremely worried that this case would undermine workers’ rights in unprecedented ways. But even Scalia and Alito were quite hostile (here and here) to the case in yesterday’s oral arguments, at least at its logical extreme. Since this would undermine business rights to run its own affairs, I assume that would be the basis of a conservative opposition, although I am certainly no legal scholar. At the very least it seems more unlikely that a sweeping ruling will come down than it did yesterday. We will see.

And You Thought This Supreme Court Session Was Bad

[ 10 ] July 1, 2013 |

Rich Yeselson with a good overview of how the Supreme Court is likely to eviscerate card check for unions next year:

The circuit court panel remanded back to the district court so that it “can consider the § 302 claim and determine the reason why UNITE and Mardi Gras agreed to cooperate with one another.” This outcome and the ambiguity of the 11th Circuit decision prompted both sides of the litigation to seek a hearing before the Supreme Court (although, interestingly, the solicitor general, on behalf of the Obama Administration, urged the Court to let the 11th Circuit’s decision stand). The consequences could be highly significant. The Roberts Court could decide to go beyond the 11th Circuit’s decision and reaffirm the legality of card-check agreements, a pervasive feature of labor-management relations today. Or it could hold that section 302 of Taft-Hartley makes all such agreements illegal, and thus remove one of the only remaining effective organizing strategies for use by private-sector unions.

But taking a hard line against the conditions that undergird card-check agreements would also put the Court in the anomalous position of limiting the rights of companies to reach organizing agreements with unions on their own terms—in a sense, a broad reading of section 302 could be construed as impinging upon the rights of businesses, not just unions. Still, in this as in all of its litigation, the NRWLDF understands what it is up to, and it is not to enable union organizing. Given that the Roberts Court has been widely acknowledged to be perhaps the most pro-business Supreme Court in the past 70 years, the labor movement might be faced with a court decision based upon a highly creative reading of a section of the Taft-Hartley Act that might have shocked even Sen. Taft and Rep. Hartley themselves.

Every Roberts Court decision moves us closer to the Gilded Age.

The Roberts Court Would Like to Add a Film to Its VRA Decision

[ 97 ] June 25, 2013 |

It seems the Roberts Court also made a film expressing its views on American race relations and the proper order between the races. You can watch it below.

Public Opinion and the ACA, Individual Level Edition

[ 24 ] July 19, 2012 |

NPR released a new poll this morning of LVs concerning attitudes towards the ACA and the USSC decision.  Briefly, a) there’s not much new here, and b) most of the interesting stuff is within the MoE anyway.  What these new data do reiterate is that support for both the ACA itself and the Supreme Court decision are heavily mediated by pre-existing partisanship, as highlighted by my post a couple weeks ago on state level support for the ACA (which I’m going to follow up on soon as I’ve added several new variables to that little dataset).

The meat of this survey is in their (small) oversampling of the “battleground” states: CO, FL, IA, MI, NV, NH, NC, OH, PA, VA, and WI (notably, all went for Obama in 2008).  Respondents from these states are marginally yet consistently more critical of both the incumbent and the ACA.  The only item where battleground respondents are more likely than the general population to take the “Democratic” position is ‘ok, let’s accept the Supreme Court decision and move on to focus on the economy etc.’ (page 12) by 53%-44%.  For comparison, BG respondents disapprove of the ACA 39% – 52%, whereas the general population is 43% – 48%.  One would think that this might extend to Obama’s chances in these states in November.

Yet, the tendency of BG respondents to be more opposed to the ACA and the incumbent is not reflected in current polling in those states.  In only two does Nate Silver’s forecasting model predict less than a 60% probability of an Obama victory (Romney is predicted to win both Florida at 50.7% and North Carolina at 70.4%).  Both Silver and electoral-vote.com running polling averages range from marginally to rather significantly in favor of the incumbent, with only E-V’s FL (-1%), NC (-1%) and 538’s NC (-0.6%) even slightly in the Republican column.  It’s difficult to draw any substantive conclusions from this as the ACA might be a choice determinant at the margins with certain subsets of the potential electorate.  However, given that the BG states are predisposed (according to these data) to consider the ACA and the incumbent more critically, that Obama would likely win (at least) ten of these 12 states if the election were held today, this offers a conservative test of the hypothesis that the ACA is not going to swing the election.  As I discussed in my state level post on this issue, the ACA is interpreted through the prism of partisanship, as is the incumbent himself.

Perhaps the most interesting finding from this survey, at least most likely to induce a chuckle, is the response to this question (page 9):

Does the fact that the Supreme Court said the health care law is constitutional make you more likely to support the law, less likely to support the law, or does the Supreme Court decision have no effect on your support for the law?

Overall, 21% are more likely to support the ACA, 16% less likely, and it makes no difference to 58% (again, supporting the hypothesis that it’s all about pre-existing partisanship).  BG voters are a near exact replication of the overall sample (21/17/58). However, when limited to Republican respondents, the numbers are 8/30/56.

30% of Republican respondents are less likely to support the ACA because the Republican led Supreme Court ruled it constitutional.  One might excuse the 6% of Democrats believing this, but Republicans?

The Fabulous Four

[ 67 ] June 28, 2012 |

Steve Benen on the scary part of today’s Supreme Court ruling:

And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.

Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

There are some who argue that this year’s presidential election isn’t especially important. I hope those who believe this consider what today’s court minority was prepared to do, and what they will do with just one more vote.

I have a lot of criticisms of this administration, but anyone who says that this election doesn’t matter or that Romney and Obama are basically the same need to think again. The radical right on the Supreme Court and in Congress want to return the nation to the Gilded Age. Obama does not. That’s a pretty freaking huge difference.

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