The death of Supreme Court Jus­tice Ruth Bad­er Gins­berg has trig­gered a hasty search by Pres­i­dent Don­ald Trump and Sen­ate Repub­li­cans for a jus­tice to fill the emp­ty seat before the Novem­ber pres­i­den­tial election. 

Now Trump has cho­sen Amy Coney Bar­rett, of the two women at the top of his short­list, as his Supreme Court nom­i­na­tion, but she has not yet been con­firmed. Bar­rett, a staunch con­ser­v­a­tive groomed by the Fed­er­al­ist Soci­ety, has been iden­ti­fied as a strong­ly anti-abor­tion nominee.

In employ­ment cas­es that Bar­rett has seen, she has adopt­ed large­ly anti-work­er—and on two occa­sions, racial­ly dis­crim­i­na­to­ry—posi­tions. In 2017, Bar­rett vot­ed not to re-hear U.S. Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion v. Auto­zone, in which a three-judge pan­el ruled in favor of an Auto­zone which had seg­re­gat­ed its stores based on race. In a 2019 case, she ruled against a Black Illi­nois Depart­ment of Trans­porta­tion work­er who had alleged that his fir­ing was racial­ly-moti­vat­ed, giv­en racist ver­bal harass­ment he expe­ri­enced on the job. And this year, Bar­rett ruled that Grub­Hub dri­vers could not file a class action law­suit against their employ­er—a blow to work­ers in the rapid­ly expand­ing gig economy. 

If appoint­ed, Bar­rett would cement the con­ser­v­a­tive major­i­ty on a court that has already demon­strat­ed a strong anti-work­er ten­den­cy. In two major labor cas­es in the last three years the Supreme Court ruled 5–4 to curb union and work­er pro­tec­tions. In Epic Sys­tem Corp. v. Lewis, the Supreme Court deter­mined that employ­ers could con­trac­tu­al­ly oblig­ate work­ers to for­go their right to col­lec­tive­ly sue the employ­er—before the deci­sion, class action law­suits were regard­ed as “pro­tect­ed con­cert­ed activ­i­ty” under Sec­tion 7 of the NLRA. And in Janus v. AFSCME, the court ruled that pub­lic-sec­tor unions could no longer require rep­re­sent­ed work­ers to pay union fees, again vot­ing along con­ser­v­a­tive-lib­er­al lines. 

In These Times spoke to James Gray Pope, a labor activist and legal schol­ar from Rut­gers Uni­ver­si­ty, about the con­ser­v­a­tive court and labor. 

In These Times: What kinds of labor lit­i­ga­tion do you antic­i­pate com­ing before the court? And what are the impli­ca­tions for labor when the court becomes so over­whelm­ing­ly conservative?

James Gray Pope: The big-pic­ture point here is that through­out the whole range of issues that affect the work­ing class, the Supreme Court is going to be in a fun­da­men­tal­ly reac­tionary pos­ture. And we’ve been through a peri­od like that, the so-called Lochn­er era, which refers to the late 19^th and ear­ly 20^th cen­tu­ry Supreme Court trend of oppos­ing legal reg­u­la­tions around work­ing con­di­tions. The Lochn­er case itself involved a New York max­i­mum hours law that the court struck down because it vio­lat­ed the indi­vid­ual free­dom of con­tract of employ­ers and work­ers to agree that the work­er would work for any num­ber of hours that they want­ed. And the court said it was ille­git­i­mate for a leg­is­la­ture to take into account imbal­ances of pow­er in a con­trac­tu­al rela­tion­ship, unless the pro­tect­ed indi­vid­u­als were some­how inca­pable of tak­ing care of them­selves, like chil­dren. So, that being the basic ide­o­log­i­cal cen­ter-point for jurispru­dence dur­ing that peri­od, the court did a lot of inter­ven­tion in terms of strik­ing down work­er-pro­tec­tive leg­is­la­tion, max­i­mum-hours laws, min­i­mum wage laws, union-rights laws, and laws out­law­ing yel­low dog con­tracts.

And this peri­od today is sim­i­lar. The core ide­ol­o­gy is real­ly the same, but the court can’t imple­ment it with the kind of puri­ty that it could imple­ment it dur­ing the Lochn­er era, because labor stat­ues are sit­ting there. The state­ment of pur­pose of the Nation­al Labor Rela­tions Act (NLRA) talks about inequal­i­ty, bar­gain­ing pow­er, and the need for full free­dom of asso­ci­a­tion of work­ers. So they have to deal with that. 

But you can see it in Epic Sys­tems. You can see right from the begin­ning of the opin­ion, Jus­tice Neil Gor­such is irri­tat­ed at the work­ers there for bring­ing a suit against their employ­er after they had agreed not to. So the idea here is that an indi­vid­ual work­er, you know, sits down with an employ­er and is in an equal rela­tion­ship in nego­ti­at­ing some­thing. Where­as, of course, as Jus­tice Ruth Bad­er Gins­burg says, in foot­note two of her opin­ion, it did­n’t hap­pen that way. The com­pa­ny just sends out an edict say­ing, “You either agree to this or you lose your job.” That’s the present-day ver­sion of the Lochn­er era, indi­vid­ual lib­er­ty of contract. 

In These Times: Beyond cas­es that deal direct­ly with the NLRA, what is the kind of lit­i­ga­tion that could come before the Supreme Court that would affect workers?

James Gray Pope: I don’t think any­thing’s going to be so much dif­fer­ent from the recent direc­tion. It’s just that it’s going to be more intense and con­sis­tent. What’s going to be an issue here in terms of what the court does, I think, is the extent to which Supreme Court Jus­tice John Roberts, who has some sense of his­to­ry and some con­cern about what the his­tor­i­cal ver­dict on his chief jus­tice­ship is going to be, is going to con­strain the court in the labor law area. I think he under­stands the need to con­strain the court in the civ­il rights area, and even some of the oth­er con­ser­v­a­tive jus­tices have issued sur­pris­ing pro-civ­il rights opinions. 

The Supreme Court is like any polit­i­cal body in the sense that you spend polit­i­cal cap­i­tal, and there’s an assess­ment: “Well, do we want to spend our polit­i­cal cap­i­tal on this issue? Are we going to spend it on that issue?” And that’s going to be the big ques­tion now that they’re going to have. If this nom­i­nee gets con­firmed, con­ser­v­a­tives are going to have a very strong major­i­ty. And they’re going to have the pow­er to trans­form the law immense­ly. And so the ques­tion is, where are they going to put their ener­gy? And my fear is not so much for labor law, because labor laws are fun­da­men­tal­ly weak any­way, but more in the area of vot­ing rights and gerrymandering. 

In These Times: How does the Fed­er­al­ist Society’s tex­tu­al­ist or orig­i­nal­ist tra­di­tion affect rul­ings on labor-relat­ed cases? 

James Gray Pope: Orig­i­nal­ism ini­tial­ly was a pure­ly con­ser­v­a­tive phi­los­o­phy where basi­cal­ly you imag­ine set­ting a time machine back and ask­ing the peo­ple who enact­ed the 14^th Amend­ment, for exam­ple, “Well, did you intend to give women equal rights to men?” And that was the kind of method­ol­o­gy that’s now referred to by more sophis­ti­cat­ed pro­po­nents of orig­i­nal mean­ing as “orig­i­nal expect­ed appli­ca­tion,” where instead of going after the orig­i­nal mean­ing you’re going back and you’re going after the ways in which peo­ple in that his­tor­i­cal era would have applied the provision. 

One of the big prob­lems with orig­i­nal­ism is, what hap­pens if a body of prece­dent builds up that seems to con­tra­dict your view? In a way, the most dra­mat­ic illus­tra­tion is Supreme Court Jus­tice Clarence Thomas on the scope of the Com­merce Clause. And this relates to labor. Thomas thinks that the word “com­merce” is the Con­gress’s pow­er to reg­u­late inter­state com­merce, the word com­merce just means the buy­ing and sell­ing of things. And so, in his view, the deci­sions that upheld the Wag­n­er Act and the Nation­al Labor Rela­tions Act are wrong from an orig­i­nal­ist point of view.

Well, the prob­lem is that stare deci­sis—a judi­cial pol­i­cy that courts gen­er­al­ly fol­low ear­li­er rul­ings (prece­dent), some­times even when the ear­li­er rul­ings were erro­neous—is total­ly manip­u­la­ble: It’s a mul­ti fac­tor analy­sis that’s eas­i­ly manipulable. 

In These Times: Con­sid­er­ing the fact that labor law in the Unit­ed States is real­ly weak, and work­ers’ pro­tec­tions will like­ly be fur­ther erod­ed in the com­ing years, what are the ways that you might antic­i­pate unions or work­ers orga­ni­za­tions respond­ing to that land­scape, through the law or not?

James Gray Pope: Broad­ly, I would say that pol­i­tics are key. And what’s real­ly cru­cial is to get strong pro­gres­sives into elect­ed office, from which point they can pack the court. So if you want it to go through for­mal legal method mech­a­nisms, that would be the way to do it. And obvi­ous­ly, that’s an area that’s fraught right now with the ger­ry­man­der­ing opin­ion, the vot­er ID rul­ings, and Cit­i­zens Unit­ed guar­an­tee­ing the right of mon­ey to skew the polit­i­cal process. All of those things are going to make it very dif­fi­cult to break through. 

The last time this was a prob­lem was around the Lochn­er era, dur­ing which a lot of peo­ple were denied the right to vote, includ­ing not only African Amer­i­cans in the South, but also poor whites in the South, and women. So the demo­c­ra­t­ic process was skewed then as well. Ulti­mate­ly, what was cru­cial was mass resistance. 

And the strikes in 1934—that was the peri­od where you had gen­er­al strikes and threat­ened gen­er­al strikes in a num­ber of cities, bring­ing about the per­ceived pos­si­bil­i­ty of, if not rev­o­lu­tion, some­thing at least threat­en­ing the order. And that got the NLRA passed. And in my opin­ion, that’s what got the NLRA upheld as con­sti­tu­tion­al along with Pres­i­dent Franklin Delano Roosevelt’s threat to pack the Supreme Court with jus­tices sym­pa­thet­ic to the New Deal.

This blog originally appeared at In These Times on September 28, 2020. Reprinted with permission.

About the Author: Alice Herman is an In These Times Good­man Inves­tiga­tive Fel­low, as well as a writer based in Madi­son, Wis­con­sin, where she works at a restau­rant. She con­tributes reg­u­lar­ly to Isth­mus, Madison’s alt-week­ly, and The Pro­gres­sive magazine.