Economic Justice Before the High Court





Dr. Elizabeth Tandy Shermer teaches at Loyola University Chicago and is a Mellon Fellow in American History at the University of Cambridge.

We are in the middle of another fight over the Supreme Court.  Elena Kagan, Obama’s woman of judicial mystery, is now before the Senate.  Even before the hearings began, conservatives wrung their hands over what they assume will be yet another liberal justice eager to legislate from the bench.  Most fret over her stance on abortion, gay marriage, and “don’t ask, don’t tell,” but pundits have gone back to the tried-and-true method of trying liberal jurisprudence in the court of public opinion.  Senator Mitch McConnell boldly labeled her “a political advocate—the very opposite of what the American people expect in a judge.”  To their credit, liberals and self-identified progressives have argued that there is, in fact, judicial activism for the Right.  “Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase,” noted journalist Linda Greenhouse, who covers the Supreme Court beat for the New York Times.  “Chief Justice Roberts is not wedded to a single judicial methodology like the originalism and textualism that are the touchstones for Justices Antonin Scalia and Clarence Thomas.  Nor does he seem as interested in exploring the limits of federal power as Chief Justice Rehnquist and Justice O'Connor had been.”

Yet perhaps the most important facet of liberal jurists in the modern era is their complacency and complicity with the conservatives on the bench.  Past rulings about the power and potency of unions, arguably, did much to enshrine conservative economic principles as political orthodoxy.  Judges protected managerial rights to intimidate and harass employees who try to unionize, made punitive decisions against union locals and individual workers, and interpreted statues so as to strip rights away from employees to form unions of their choosing.  Though we often blame low-wage China or greedy Wall-Street for problems on Main Street, jurists have perhaps done the most to clear the path for the business-led race to the bottom that has left more and more Americans uninsured, underpaid, or simply unemployed.

Though labor types have largely remained silent on Kagan’s nomination, perhaps recuperating from their efforts to get Obama’s top nominee onto the National Labor Relations Board, her appointment matters just as much as who serves on the NLRB.  When it comes to policy, the devil is rarely in the details of passage but in struggles over interpretation and implementation.  There is no greater example than the dramatic fight over labor’s power and security.  Perhaps the trade union movement’s greatest legislative victory was the 1935 Wagner Act, which guaranteed workers’ right to organize (except those in agriculture, domestic service, or public employment) by way of federal oversight to ensure free and open elections without employer interference.  Senator Robert Wagner sold the bill as a measure to help pull the nation out of the Depression and assist those Americans “who do not possess full freedom of association or actual liberty of contract.”  Too often, he declared, strikes and slowdowns were the only recourse workers had against businessmen who would not recognize unions, provide better working conditions, and pay the wages necessary for employees to buy what they made.

With the rallying cry, “Roosevelt wants you to join a union,” there was a surge in union organizing but pitched battles in factories between workers and managers.  Four days after Roosevelt signed Wagner into law, managers at the Jones and Laughlin Steel Corporation’s Aliquippa plant fired ten employees, considered to be key leaders in the attempt to organize the facility.  Union officials immediately filed an unfair labor practice with the new NLRB, which sided with the workers, who were to receive reinstatement and back pay.  J&L refused to abide by the ruling, which forced the matters into the courts.  The case took a tortured path through the judiciary but ultimately proved a landmark victory for the trade union movement.  The Supreme Court upheld the Wagner Act in a 5-4 decision.  Chief Justice Charles Hughes asserted that labor had a “fundamental right” to organize their own unions and elect representatives.  In the wake of this and other rulings, labor entered a veritable golden age.  With new rights, protections, and powers, American workers enjoyed unprecedented affluence, which brought many into the ranks of the middle class.

But judicial activism from the Right, and early acquiescence from liberal appointees, has robbed many Americans of this standing.  The 1947 Taft-Hartley Act, the last sweeping labor legislation passed in the twentieth century, was a blow to workers, both unionized and unorganized.  Opponents deemed the proposal the “slave-labor bill” for the numerous restrictions on union size, strength, and security, including:

  • protection for employer free speech

  • prohibition on unions for supervisors, even those who have the same duties as their charges.

  • a guarantee that individual states could restrict membership clauses in all union contracts.

Taft-Hartley’s passage was not labor’s death knell, but its strange career in the courts brought working people to their knees.  The earliest conflicts were over union security, made possible through contract provisions that ensured high membership rates, full union coffers, and tremendous power at the bargaining table.  Section 14b allows states to pass so-called Right-to-Work laws, which prohibited locals from making union membership a requirement to work in an organized workplace (though nonmembers enjoy the contract’s benefits and protections).  Labor’s foes always cast this issue as a question of individual freedom, opportunity, and choice.  In reality, 14b destroyed unions.  Judges played a critical part.  Labor challenged right-to-work legislation before the Supreme Court in 1948 on charges that it violated the freedom of contract and the freedom to assemble (in this case: with only union workers).  In the 1949 decision, jurists disagreed with Wagner’s concerns about the importance of unions to a fair and free contract.  Roosevelt-appointee Hugo Black wrote the majority decision, which deemed the law constitutional and their decision within the framework provided by earlier cases that upheld the Wagner Act because it “prohibits employment discrimination against nonunion workers.”  In a concurrence, Justice Felix Frankfurter, a top Roosevelt advisor before his nomination to the Court, declared that the quandary between what was good for the union and more fitting for American ideas of individualism “is a question within the special province of the legislature.”

By passing the buck, the ruling slowly crippled organized labor.  Within a decade, right-to-work states, primarily in the low-wage South, Mountain West, and desert Southwest, still measured an uptick in the number of unionists but their share of the overall workforce declined, even more so a generation later when manufacturing jobs had gone overseas and the union stalwarts, politicized in the Wagner Era, began to retire and enjoy the benefits of their union-guaranteed pensions.

Similar stories could be told for Taft-Hartley’s other sections.  Over the past fifty years, especially after complicit liberals were replaced by conservative jurists, the legal definition of supervisor has so expanded that many employers can now reclassify employees to keep them from organizing.  Hospitals, for example, have used this loophole to stymie efforts to organize nurses by assigning them just a few hours of managerial work.  Employer free speech has also destroyed federal guarantees of union recognition and worker choice.  Wal-Mart uses employee orientation and training to intimidate new recruits with warnings that unions would mean more red tape, less opportunity, and an end to Wal-Mart’s familial atmosphere.

So what about Kagan?  What can we expect from her in this moment of economic crisis and judicial opportunity?  Her law review articles tell us nothing about her commitment to protecting the working class.  Her collegiate dabbling in the history of early twentieth-century trade-union radicalism may exhibit, as her mentor Sean Wilentz expounded, “an unusually mature way of thinking that would not settle for easy answers to historical problems,” but her sympathy for garment workers’ struggles against industrial capitalism says nothing about her views on the Court’s complicity and cooperation with American businesses determined to keep wages low, turnover high, and the workforce desperate.

In the documents just released from the William J. Clinton Presidential Library, there are clear signs that Kagan may prove herself to be a quiescent liberal jurist and even a champion of the Clintonian New Democrat politics that protected, not undermined, Wal-Mart’s low-wage, cut-throat business model.  Her name appears with two others on a list of ideas for the 1997 State of the Union address, which started with support for education reform built on testing to measure educator accountability, “ending social promotions, removing bad teachers, reconstituting failing schools, and adopting district-wide choice and/or public school vouchers,” the stock-in-trade of conservative school reform that demonizes the teachers and unions who have fought budget cuts in legislatures and in voting booths.

She also penned, with Bruce Reed, two worrisome memos in the wake of welfare reform that ignored the needs of those trapped at the bottom of the service economy.  In a 1997 report, “Welfare Reform—Privatization and Minimum Wage,” Reed and Kagan theorized that trade union leaders would swallow the proposed privatization of Food Stamp and Medicaid programs, asserting that labor worried first about a “resulting loss of union membership” from the displacement of state and local government workers, if the White House proposed to ensure that workfare programs would be guaranteed a minimum wage.  Yet Kagan and Reed equivocated on the latter.  Though they acknowledged that “the new welfare law contains no exemptions from worker protection statues,” they also considered the possibility that states could designate individuals as trainees to skirt the Fair Labor Standards Act or count food stamps, child care, housing, and transportation toward meeting the federal minimum wage.  An advisor sent the memo to Clinton before a meeting with union leaders and suggested:  “you can give the labor leaders some indication that our interpretation of the law is consistent with their thinking.  Given that the issue is essentially a legal interpretation, it may not rise to the level where a decision is required from you.”

Another 1997 Kagan and Reed memo should raise even more concern.  They reported that states “would like to spend their money in separate, non-TANF programs, free from federal restrictions, but still counting toward the maintenance-of-effort standard.”  This demand alarmed Kagan and Reed because “states could place the families most likely to make child support payments in the state-only program and thereby avoid sharing child support collections with the federal government,” which they estimated to be over $1 billion per year.  Yet they spilt the most ink over the possibility that this policy “could seriously undermine the work provisions of the welfare law.”  Their solution to ensure a ready supply for the new service economy:  “regulation…that…will prevent states from decreasing their obligation to put people to work.”

From the little released, Kagan seems anywhere from an unknown to another New Democrat who accommodates the right-wing, pro-business agenda.  Yet the mainstream press lacks the political language to describe such a liberal’s economic politics and this type of judicial inaction or compliance.  In the current crisis, compounded by record unemployment, legislative paralysis, and fierce disagreements over spending and austerity, there should be better discussion of what Kagan represents, both historically and for the future.  The sword of judicial activism works both ways.  The next appointee could maintain the status quo or help undo fifty years worth of punitive decisions and rebuild the economy on a workforce that is organized, empowered, and protected.

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