WASHINGTON —Potential U.S. Supreme Court nominee Judge Ketanji Brown Jackson has given the nation’s two million federal workers a legal win over their nemesis, former GOP Oval Office occupant Donald Trump—again.
This time Jackson threw out an anti-worker scheme the Trump-named majority on the Federal Labor Relations Authority concocted in the waning days of the Republican regime. The FLRA is the equivalent of the National Labor Relations Board, but for federal workers.
Jackson called the massive changes FLRA wanted to impose on workers, without a chance for unions or anyone else to comment, “arbitrary, capricious and contrary to law.”
Her stand, in one sense, was no surprise. Several years ago, Jackson, then a federal district judge in D.C., tossed Trump’s three anti-worker anti-union executive orders. All three broke federal law regarding government worker-management relations and one broke the U.S. Constitution’s clauses for free speech and the right to petition Congress about grievances, too.
Jackson’s Feb. 1 ruling was a big win for the American Federation of Government Employees (AFGE), the largest union for federal non-USPS workers, which sued FLRA this time and Trump last time. It was one of two wins in five days for the union against FLRA.
But the win is important not just for its substance, but because of who Jackson is. She’s now a judge on the U.S. Court of Appeals for D.C., often called the nation’s second-most-powerful court. And she’s on the shortlist, so far, of Black female judges Democratic President Joe Biden is considering as successors to retiring Supreme Court Justice Stephen Breyer.
During the 2020 campaign, Biden pledged his first High Court nominee would be the first-ever Black woman on the High Court. Breyer said he would retire at the end of the court’s current term or when the Senate approves a successor.
Jackson, a graduate of Harvard and Harvard Law School, was one of three judges immediately identified as on Biden’s list of possibilities, especially since he previously interviewed her. She’s also a former public defender and former Supreme Court clerk—a term for top aides who research the law for the justices—for Breyer.
Right-wing Senate Republicans, led by Ted Cruz of Texas and Roger Wicker of Mississippi, are already screaming, defending white male conservative privilege, ignoring the top credentials of Jackson and both other Black woman judges mentioned so far.
In her latest decision, Jackson explained federal agencies must bargain with AFGE and other federal worker unions when bosses plan to initiate “changes to the ‘conditions of employment affecting such employees.’” Those changes include personnel and “other matters affecting working conditions,” she noted. The only specific exceptions were defined and listed as minimal.
But after almost 40 years, Trump’s FLRA changed the policy last September, without even bothering to tell AFGE and other federal worker unions, Jackson wrote. The only time the Trumpites wanted to talk with the unions was when “a workplace change has “a substantial impact on a condition of employment.”
AFGE, defending its members, took the Trump FLRA to court. The unions “maintain FLRA’s new standard is both inconsistent with the governing statute and insufficiently explained, and is therefore arbitrary, capricious, and contrary to law,” Jackson said. They were right. She threw out FLRA’s scheme.
As a U.S. District Court Judge in D.C., Jackson tossed Trump’s anti-worker executive orders. Trump evicted federal worker unions out of their small offices in buildings, yanked their phones, computers, and fax machines, barred workers from contacting Congress, and even made union shop stewards conduct cases on their own time and on their own dime. Besides breaking labor law, banning congressional contact was unconstitutional, too, she ruled.
But in a sign of the superior panel’s power, the D.C. appellate court, on which she now sits, overruled her then, on a party-line 2-1 vote for Trump. Now, it won’t. And Biden revoked Trump’s executive orders, thus agreeing with Jackson.
FLRA also lost its attempt to bar mid-term bargaining during union contracts, Appellate Judge Cornelia Pillard decided. Her ruling, for another three-judge panel, preceded Jackson’s.
The rulings by Jackson and Pillard “highlight the extreme lengths to which the holdover” Trump-named FLRA majority “will go in its attempts to bust unions, limit collective bargaining, and run roughshod over the law,” union President Everett Kelley said.
Jackson, said Kelley, bounced “FLRA’s unfounded attempt to restrict a union’s right to bargain over changes affecting conditions of employment for the employees it represents. As the court rightly recognized, the FLRA’s decision was arbitrary and capricious from the start.” Pillard “overturned another baseless FLRA decision that would have drastically reduced federal unions’ collective bargaining by eliminating the statutory right to mid-term bargaining.”
Both judges, he said, recognized Trump’s FLRA majority “impermissibly departed from” federal sector labor law “and years of well-founded precedent with little explanation and less reasoning.” He called the judges’ decisions “a vindication for the rule of law.”
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