WASHINGTON—In her three years as a federal appellate court judge, Amy Coney Barrett, whom GOP Oval Office occupant Donald Trump has nominated to the U.S. Supreme Court, has shown herself to be bad news for workers’ rights, legal analysts report.
But what may be scarier about the former Notre Dame University law professor is her willingness to overturn prior High Court rulings pell-mell, claiming they don’t agree with the U.S. Constitution’s text.
Trump nominated Barrett, a member of the right-wing Federalist Society, to succeed the late Justice Ruth Bader Ginsburg, whose long career on the High Court was marked by her championship of women’s rights, workers’ rights, the right to vote, and, more recently, the Affordable Care Act.
On virtually all those issues, analysis of Barrett’s writings and judicial opinions puts her at the opposite pole. In other words, what Ginsburg favored, Barrett opposes.
“Judge Barrett has proven she puts the wealthy and powerful first, and record shows that if confirmed as a Supreme Court Justice, she would only further entrench the anti-worker pro-corporation slant of this Supreme Court, making it far more difficult to enforce workplace protections and jeopardizing workers’ rights,” said Rebecca Dixon, executive director of the National Employment Law Project.
“The people of the United States need a nominee who will stand up to powerful corporate interests, uphold the rule of just laws and our constitutional protections, and put people first. Amy Coney Barrett is not that person. By choosing her and attempting to fast-track this nomination, Trump and Senate Majority Leader Mitch McConnell, R-Ky., “only weaponize the court against the people and our rights.”
Thus, legal analysts declare, Barrett would cement a pro-corporate, pro-capital, anti-worker, anti-civil rights, anti-reproductive rights, and anti-women’s rights six-person GOP-named majority on the court, for decades. They cite specific Barrett decisions as well as her legal writings.
“Her record on racial and age discrimination and immigration rights is equally troubling,” said National Nurses United Executive Director Bonnie Castillo, RN, said in an extensive union analysis at www.nationalnursesunited.org/press. That includes racial discrimination in employment.
“Judge Barrett joined a 2017 majority decision rejecting a claim against Autozone assigning employees to stores based on race, a verdict dissenters called a return to Jim Crow era ‘separate but equal’ discrimination. In a case last year, she sided with panelists in refusing to allow an age discrimination claim.” (The stores were in the Chicago metro area.)
“Just last month, Judge Barrett wrote the 7th Circuit opinion siding with Grubhub to say drivers cannot press for minimum wage and overtime pay as a class action. They must use arbitration agreements, a decision that limits gig workers across the country,” Castillo added.
Actually, a reading of Barrett’s ruling shows it goes even further. If you’re not physically engaged in interstate commerce, she wrote, you can’t sue as a class when the boss exploits you but must instead go to arbitration. Statistics show bosses win arbitrations more than 90% of the time.
“A class of workers must themselves be ‘engaged in the channels of foreign or interstate commerce,’ to be able to invoke their rights, Barrett wrote on Aug. 4, citing a 1998 decision from the 10th Circuit Court of Appeals in Denver.
“That, after all, is what it means to be a ‘transportation worker’ who performs work analogous to that of seamen and railroad employees, whose occupations are centered on the transport of goods in interstate or foreign commerce.
“By erasing that requirement,” the Grubhub drivers in Chicago, New York and Portland, Ore., “would sweep in numerous categories of workers whose occupations have nothing to do with interstate transport—for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy.”
But it’s not just Barrett’s rulings on the Chicago-based appeals court that reveal her anti-worker bias.
“While at Notre Dame, Barrett signed a 2012 ‘statement of protest’ condemning the accommodation the Obama administration created for religious employers who were subject to the Affordable Care Act’s birth control mandate,” legal analyst Amy Howe wrote on the Scotus.com blog.
“The statement lamented the accommodation ‘changes nothing of moral substance and fails to remove the assault on individual liberty and the rights of conscience which gave rise to the controversy.’” That’s a polite way of saying Obama’s “accommodation” did not completely let hospitals, especially Catholic hospitals, opt out of performing abortions or other reproductive choice procedures.
Then there’s Barrett’s advocacy of throwing out prior Supreme Court precedents, a tactic workers know about all too well.
In general, the Supreme Court has favored what’s called in Latin stare decisis. In plain English, that means if there was a prior High Court ruling on a particular issue, and it’s been in effect for a long time, the court is inclined to go along with it because people have come to rely on it and act accordingly.
That’s not to say stare decisis is an unchangeable rule. In 1896, for example, the court majority legalized Jim Crow racism in Plessy vs Ferguson. In 1954, led by Chief Justice Earl Warren, they listened to arguments from the NAACP’s lead attorney, Thurgood Marshall, and tossed legalized segregation out, in Brown vs Board of Education. That vote was 9-0.
As Finley Peter Dunne, AKA “Mr. Dooley” said in Irish “dialect” in his Chicago newspaper column in the late 1890s: “Th’ Supreme Court follows th’ iliction returns.” So the High Court tossed legalized racism in 1954. But Brown didn’t stop deeply embedded U.S. racism or racists, South and North, who still resist rooting it out.
When it comes to workers’ rights, though, the High Court’s track record on stare decisis is not good, and analysts say Barrett on the bench would only make it worse.
Though it’s not the only case where the justices tossed out precedents when considering workers’ rights, the most recent, and the most notable decision was, of course, the Janus vs AFSCME District Council 31 case out of Illinois several years ago. There, in yet another party-line 5-4 split, the five GOP-named justices threw out a 42-year-old pro-union precedent.
That 1975 precedent said that in non-”right to work” states, governments could require non-union state and local public workers covered by a union contract to pay “fair share” fees for union services they use, such as contract bargaining and defending workers against bosses’ discipline.
In a decision by Justice Samuel Alito—who had actually encouraged anti-worker right-wingers to bring the case, via a footnote to another anti-worker 5-4 ruling several years before—the justices tossed that precedent. The Janus case was also part of the right-wing’s long “defund the left” campaign.
And as a result, every non-member state and local worker can now become a “free rider,” using union services without paying one red cent for them, Alito ruled for the majority. So much for stare decisis.
Barrett may well agree. “In Stare Decisis and Due Process, published in the University of Colorado Law Review, Barrett discussed the legal doctrine that generally requires courts to follow existing precedent, even if they might believe it is wrong,” Howe wrote.
“Barrett wrote courts and commentators ‘have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books.’ In a footnote, she cited, among other things, Planned Parenthood vs Casey, the 1992 decision reaffirming Roe vs Wade,” the original pro-abortion decision.
“Barrett’s detractors characterized the statement as criticism of Roe itself, while supporters such as conservative legal activist Ed Whelan countered the statement did not reflect Barrett’s views on Roe itself but instead was just an example of competing opinions on the reliance interests in Roe.” That’s a stand opposite of Ginsburg’s position.
“Ginsburg understood this and the history” of worker-boss imbalance, as she wrote in a recent dissent, Economic Policy Institute co-founder Larry Mishel wrote.
Ginsburg laid out her position “in her dissent” to the High Court ruling that placed forced arbitration even above union contracts, Mishel explained.
Quoting her, he added: “‘Forced to face their employers without company, employees ordinarily are no match for the enterprise that hires them. Employees gain strength, however, if they can deal with their employers in numbers. That is the very reason why the National Labor Relations Act secures against employer interference employees’ right to act in concert for their ‘mutual aid or protection.’”
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