In the area of labor law it's not the Supreme Court that's the primary problem, it's the law itself. If the toothlessness of the National Labor Relations Board allows the bosses to violate the law at will, with no truly serious penalty, there is nothing any Court, even one full of William Kunstlers, can do to bring back a meaningful right to organize.
So my concern is not what the Supreme Court might do under a Bush Administration. It's highly unlikely that the present law will change. My worry is that the conservative Justices Bush might appoint will be around long after he leaves office. If a more progressive administration succeeds him and pushes through new labor law that would give US workers a real right to join unions, a Bush Supreme Court packed with Antonin Scalia and Clarence Thomas types would gut it. Suppose, for example, that a future Democratic Congress, stripped of a filibuster, passed a law similar to Canada's, where if enough workers sign cards saying, in effect, they want a union, there is no election–a union is in place. The Bush Supreme Court might declare that such a law violates the employer's First Amendment right to present the anti-union view, to "speak" to (i.e., to intimidate, threaten) the workers before they sign the cards.
Right now, however, what hurts labor, day to day, is the wins and losses in the lower courts. That's because in labor and civil rights, the Rehnquist Court sometimes works by proxy, and many of the lower appellate courts (e.g., the District of Columbia, the Fourth Circuit) are worse. In the 1999 term, the Supreme Court gave opinions on only seventy-five cases, mostly ones that the Justice Department asked it to take. Just by turning down or not reading cases, the Court can effectively "rule" without ruling. Consider the one real labor-law reform attempted by the Clintonites: to stop federal purchases from employers who use striker replacements. The right-wing Court of Appeals for the District of Columbia Circuit struck down Clinton's power to do this by regulation. The Supreme Court refused to hear an appeal. The Clintonites probably would have lost anyway, but this is a good example of how a conservative Supreme Court, by proxy, can block an attempt to restore union power.
Still, the Rehnquist Court has handed down some bad decisions. In Lechmere v. NLRB (1992) Justice Thomas's opinion was very touchy about the employer's property rights in a union organizing drive. It made clear, again, the policy of keeping nonemployee union organizers off the property, except in circumstances (vague) when there is no other way to communicate with workers.
Apart from strict labor cases, there are many rulings from the Rehnquist Court on class actions, federalism and other areas that indirectly shrink labor's power. Why does the High Court's taste for states' rights seem to whet when it can hurt a public union–as it did in Alden v. Maine (1999)? Apart from its states' rights silliness, the Alden opinion bars more than 4 million state workers from suing under federal wage laws in state court.
Alas, the real advance in workers' legal rights has come mostly in state courts. Some state courts have set limits on certain types of firings. That's something, but it does little to help Americans raise wages or reduce income inequality.
To be fair, in civil rights, we owe a bit to the Rehnquist Court, and to Scalia especially. In cases in the late eighties, the Rehnquist forces so vigorously whacked away at Title VII and related laws that the Democratic Congress was roused to action. Instead of just reversing these bad cases, Congress expanded the remedies for Title VII violations. Now we have jury trials and punitive damages. We owe at least a little thanks to Justice Scalia. Almost a year ago, a former clerk of the Court complained to me about how badly we labor types presented those cases in the eighties. "And," she said, "that's why we got those bad rulings from Scalia." Ah, but thanks to our bungling, we expanded civil rights remedies.
Only now, if we bungle with a Republican Congress, such mischief would linger on. This may be so with the Americans With Disabilities Act. Incredibly, last year the Court parsed the term "disability" to exclude, arguably, even an amputee with prosthetic limbs. In his majority opinion, Justice O'Connor tried to "intuit" what Congress "must have meant"–something that conservatives, as formalists, are famous for saying they never do.
Never, except when it hurts disabled workers. But in labor law especially, judges often rule from scratch. It often seems that the whole country has, without knowing it, drifted into a civil law, European-type legal system, in which we don't use precedent in the old Anglo-American common law way, for the simple reason that there isn't any precedent–especially with new laws like ADA and in the realm of civil rights, where the judges have to "make it up" the most.
Precisely because we have to make it up more and more, we should care who's on the Court. In labor, especially, by making it up for the decades to come, the Rehnquist Court et al. will help decide how much the rest of us Willy Lomans can get out of the lives we so recklessly throw away at work.
