Criminals are often said to have a modus operandi—a standard set of underhanded tactics for achieving their illicit agenda. The same kind of pattern can be seen on the other end of the legal spectrum, among Supreme Court justices. Over the last few decades, the strategy of the reactionaries who dominate the courts has repeated itself again and again in cases involving fundamental rights: First, they whittle away at the rights, and then, when they have a secure majority on the Supreme Court, they eviscerate them entirely. Reproductive freedom is the best example: The rights supposedly enshrined in Roe v. Wade (1973) were chipped away bit by bit over many years in smaller decisions before the final blow came in Dobbs v. Jackson’s Women’s Health Organization, which ended the constitutional right to abortion last year.
On Thursday, SCOTUS released another distressing decision, Glacier Northwest v. International Brotherhood of Teamsters. Adjudicating the alleged liability of workers for business costs incurred by their employers during a sudden strike, the court found against the union but based its reasoning narrowly on the facts of the case. In doing so, Glacier preserved, at least for now, the crucial doctrine of Garmon preemption, which holds that disputes of this sort should be decided by the National Labor Relations Board (NLRB) rather than the courts. The end of Garmon preemption would return labor law to the pre–New Deal era when right-wing judges routinely used the idea of economic damage to squash unions and labor resistance. Glacier carved out a narrow exception to Garmon but left the doctrine, in theory, largely unharmed.
It’s possible to spin the Glacier decision in a way that offers some consolation to liberals. It was an 8-1 decision, with only Justice Ketanji Brown Jackson dissenting. But, as my colleague Jane McAlevey pointed out in an illuminating analysis, that majority of eight actually consists of two competing blocks. The majority decision, written by Justice Amy Coney Barrett, was joined by two other conservatives, Chief Justice John Roberts and Brett Kavanaugh, along with two liberal justices, Sonia Sotomayor and Elena Kagan. There was a concurring opinion by three conservatives who agreed with the outcome of the decision—but wanted to go much further: Samuel Alito, Clarence Thomas, and Neil Gorsuch. Alito filed an opinion—joined by Thomas and Gorsuch—making clear that they wanted to use the case to demolish Garmon preemption, a goal they will surely continue to pursue.
The best face one can put on Glacier is that the two liberal justices who signed the decision did so strategically: They compromised with a small exemption to Garmon preemption in order to preserve the doctrine. Unfortunately, as history shows, such small exemptions are wedges: They create an opening that leads to more and more curtailment of rights. Kagan and Sotomayor might turn out to have joined a compromise that paves the way for labor rights to be as thoroughly extinguished as abortion rights.
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Justice Brown, in a dissent that was not only lonely and brave but also far-reaching, made clear that the stakes are nothing less than the right to strike itself—which was won only through hard-fought political and legal battles in the New Deal era. Jackson observed,
The right to strike is fundamental to American labor law. Congress enshrined that right in the National Labor Relations Act (NLRA) and simultaneously established the National Relations Board to adjudicate disputes that arise between workers and management. That decision reflected Congress’ judgment that an agency with specialized expertise should develop and enforce national labor law in a uniform manner, through case-by-case adjudication. For its part, this Court has scrupulously guarded the Board’s authority for more than half a century.
It’s this fundamental principle of NLRB authority that is now being whittled away, with a faction of the court wanting to do away with it altogether.
As Brooklyn College political scientist Corey Robin notes, “Not only does Jackson begin with the right to strike, but she reaffirms the New Deal goal of taking the courts out of regulating labor disputes. The courts’ regulation of the workplace had been the keystone of America’s anti-worker regime up until the 1930s, and it was the victory of the New Deal to remove the courts from that business.”
Like the Dobbs decision, Glacier should force liberals and leftists to think more radically about the courts. As the courts have grown more openly reactionary, they have been losing popular legitimacy. This has led to Democrats’ talking about court reform, including expanding the size of the Supreme Court.
But Glacier, where liberal justices joined with conservatives to roll back labor rights, makes clear that simple court reform isn’t enough. Justice Jackson’s invocation of the New Deal era reminds us that there was once a robust left-wing argument not just for reforming the courts but for radically stripping them of their power for the sake of democracy.
In 1932, socialist lawyer Louis Boudin, in his book Government by Judiciary, made a compelling case that the courts consistently serve the interest of the wealthy. As Boudin argued, “Our judges declare unconstitutional what they consider unwise or unjust or inexpedient—being guided almost exclusively by their philosophical, political, social and economic beliefs, and little or not by constitutional texts.” The courts, Boudin argued, were not serving the Constitution or the rule of law but merely the whims of the economic elite.
The widespread political opposition to the courts by liberals and leftist in the New Deal era was animated by their belief that the courts needed to be curtailed for America to become a democracy. Writing in Dissent in 2020, Yale legal scholar and historian Samuel Moyn noted that liberals moved away from this argument because of the dominance of the courts they briefly enjoyed during the Warren era. The courts acted in a progressive manner during that period, but the era of legal liberalism was a small ripple compared to the reactionary tide that has normally surged through American jurisprudence.
What would disempowering the courts entail? Writing in The Atlantic in 2022, two Harvard legal scholars, Nikolas Bowie and Daphna Renan, offered a plausible agenda regarding the Supreme Court:
If the Court is today eviscerating those very constitutional commitments through its case law, Congress should enact or amend federal statutes to advance a different understanding of a nation built on democratic justice. It should reshape the Court’s ability to intervene in these disputes, including by restricting the Court’s authority to set aside federal legislation. And it should conscript the Court in enforcing federal commitments when resistant state officials brazenly declare that the national government has no jurisdiction to protect Americans from their parochial rule.
The work of disempowering the courts will not be easy. It is a long-run project that will take decades, rather than a goal that can be achieved in a few election cycles. It’s also a project that will require liberals to give up their long-standing—and often lucrative—alliance with big law firms and elite law schools, the springboard for the careers of Barack Obama and Bill Clinton.
The case for disempowering the courts goes to the heart of the question of whether the United States will ever achieve full democracy. From the days of slavery to the battle over the New Deal to the current fights over abortion, the courts have almost always been the enemy of popular sovereignty and the expansion of rights. Achieving democracy means making sure the courts know their place. The one saving grace of the current reactionary courts is that they may yet force liberals and the left to confront this fact.
