An In These Times Conversation With Labor Activist & Legal Scholar James Gray Pope: How Amy Coney Barrett's Appointment To The U.S. Supreme Court ‘Would Escalate The War On Workers’
The death of Supreme Court Justice Ruth Bader Ginsberg has triggered a hasty search by Republican 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-to- 4 to curb Union and Worker protections.
In Epic System Corp. v. Lewis, the Supreme Court determined 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 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 Organized 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 19th and early 20th 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 Age 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.
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