Supreme Court

Supreme Court Returns With New Faces, Same Contempt For Working People

Legal geeks like to talk about a "new year and a new Court," but they're kidding themselves.

By  
on

It is perhaps fitting that we’ve just learned that a television network is working on a Supreme Court show. In reality, the return of the Supreme Court every October and its recess right before the summer mirrors a televised drama. There’s a core cast of nine principle characters — just about right for primetime fare — and a few colorful supporting characters showing up over and over to represent the tiny, incestuous Supreme Court bar. If you think of it this way, this season marks the debut of new series regular Neil Gorsuch, who arrived during a sweeps week stunt last year.

But the golden rule of television, as producer Dan Harmon explains, is the willingness to embrace the futility of change. The Court can see one of its most bankable stars pass away, his vacant seat trigger a legitimate constitutional conflict, then be filled by a president installed in office with a 3 million vote deficit, but at the end, at its core, the show carries on unchanged. The elite cadre considered Supreme Court observersTM like to cite the maxim that a new justice makes a whole new Court. It’s a pithy take, but just because Gorsuch is the FedSoc Shemp to Scalia’s Curly, the antics aren’t going to change.

So we begin another October Term of the United States Supreme Court and fittingly the song remains the same.

This morning, the Court announced that it would take Janus v. American Federation of State, County and Municipal Employees, a mouthful of a caption that could just as easily be titled Friedrichs II: The Empire Strikes Back. Once again, the Court will opine on junking almost 100 years of labor law to kneecap unions. As Chekhov said, “one must never place a 4-4 opinion on the stage if it isn’t going to become a symbol of America’s sad return to the Lochner era in the second act!” Or something like that.

In some ways, anti-labor forces got their best case scenario. Despite a decades long concerted effort to vilify teachers’ unions, there’s always a slim nut of Americans who still root for their kid’s teacher. But the bureaucrat who makes them wait on an unnecessary line at the county courthouse? Few tears will be shed for the litigants on this one, even though the effect, in the end, is the exact same.

And the hits just keep on coming! The Court’s opening up with three cases all brought to rob workers of long-held rights against employer abuse. The cases, National Labor Relations Board v. Murphy Oil USA, Ernst & Young LLP v. Morris, and Epic Systems v. Lewis are all about the one thing this Court enjoys more than simply picking on labor, cutting off access to the court system through forced arbitration. As Ian Millhiser explains:

In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a “forced arbitration” provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers.

Sponsored

Millhiser also points out that “private arbitration favors employers over employees,” which is absolutely true but perhaps a slightly misleading. One of the advantages of arbitration is that it’s more accessible, meaning claims are likely being heard by arbitrators that would never make it into the courts because workers might be loathe to engage in the hassle and cost. That does suggest that courts are hearing more “slam dunk” claims for workers than arbitrators would, which feeds the trend cited above.

Regardless, the choice of where to pursue their legal claim is a decision that workers should be free to make. Handing companies the power to dictate worker redress functionally locks workers out of courts forever because if these employment contracts are legal, what rational-actor employer won’t require one? If a law offering a judicial redress was important enough to put on the books, then it shouldn’t be skirted by employers banding together to shut off access through extortion.

The same goes for the assault on legally authorized class actions, a right which, if waivable, ushers in the nightmare Judge Posner eloquently foresaw, because “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

To borrow from the lip service conservatives usually give, “if you don’t like these laws, get Congress to overturn them.” But that’s not what’s going to happen. Activism will prevail, as it usually does when those who “doth protest too much” about legislating from the bench hold sway.

Welcome to the 2017 season of the Supreme Court. The stakes are high, people will die (on death row), we’re sure to get an exciting subplot along the way — what the hell, let’s say something about tolling — but we all know how it’s going to end. This show is both horrifying and stuck in a rut.

Sponsored

When did life become CBS Primetime?

Union Fees Will Get Fresh Look at High Court, No Longer Deadlocked [National Law Journal]
Supreme Court opens its new term with a direct attack on workers’ rights [Think Progress]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

Topics

, , , ,