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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’

Published Tuesday, September 29, 2020
by Alice Herman/In These Times
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 Con­tractsAnd 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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