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Barrett Nomination Looms Ominous for Labor Law

September 28, 2020

By Steve Wishnia

WASHINGTON—Judge Amy Coney Barrett, nominated to replace the late Supreme Court Justice Ruth Bader Ginsburg by President Donald Trump Sept. 25, is expected to be an active anti-labor vote if confirmed, despite her limited judicial record.

Judge Amy Coney Barrett – “a clear disdain for workers’ rights.”

“Judge Barrett’s record demonstrates a clear disdain for workers’ rights, and her confirmation would push the most corporate-friendly Supreme Court in history further into the pockets of the wealthy elite,” AFL-CIO President Richard Trumka said in a statement Sept. 26. “Working people’s wages, health care, job safety, civil rights and freedom to form a union will all be undermined if she is confirmed.”

Barrett, said AFSCME President Lee Saunders, has “defied the intent of the Civil Rights Act of 1964 by rubberstamping a corporate racial-segregation scheme; she has sought to undermine protections for older workers; and she has made it harder for gig workers to sue their employer for overtime pay.” He called her nomination “an insult to the legacy of Ruth Bader Ginsburg, a trailblazer for justice.”

“She doesn’t have a huge record, but it’s uniformly right-wing,” says Adam Shah, senior policy analyst at the Jobs With Justice coalition. The most important indicator, he says, is that the Koch brothers’ front group Americans for Prosperity is mounting a campaign to win support for Barrett’s nomination.

“They’re not doing that because of her record on abortion, which is terrible,” he told LaborPress. “They care about what they know she’ll do on business issues.”

Barrett, 48, was appointed by Trump to the 7th Circuit Court of Appeals, which covers Illinois, Indiana, and Wisconsin, in 2017. A law professor at Notre Dame University since 2002, she had no previous judicial experience, but had become a favorite of the Christian far-right movement for her opposition to legal abortion. She had also clerked for Supreme Court Justice Antonin Scalia and federal appeals-court judge Laurence Silberman, a mentor to Justice Clarence Thomas. 

If confirmed, Barrett would also become the third justice on the Court, after Chief Justice John Roberts and Brett Kavanagh, to have worked for the Republican side on Bush v. Gore, the 2000 decision that stopped a recount in Florida and handed the election to George W. Bush by a 5-4 party-line vote. She was part of the team from a major Washington law firm hired by the Bush campaign. (The Court’s rationale was that counting thousands of ballots that voting machines had been unable to read would be unfair to Bush, because different jurisdictions would use different standards to determine whether the voter’s intent was clear.)

In her three years on the Seventh Circuit, Judge Barrett has been involved in a handful of labor-related cases. In 2017, in United States EEOC v. AutoZone Inc., she joined the majority in refusing to rehear a black AutoZone worker’s appeal of a decision that it was not discrimination for the company to transfer him from a “Hispanic” store in Chicago to a “black” store.

In 2019, in Kleber v. CareFusion Corp., she joined the majority in ruling that federal law protecting employees from “disparate impact age discrimination” does not cover outside job applicants. The case involved a 58-year-old lawyer who did not get a job interview at a company that was not considering applicants with more than seven years of experience.

In August, she wrote the majority opinion in Wallace v. Grubhub, in which a three-judge panel unanimously upheld a lower-court ruling that Grubhub food-delivery drivers could not challenge the app-delivery company’s refusal to pay them overtime, because they had signed an agreement to settle disputes by arbitration only. The drivers argued that a 1925 federal law exempts workers engaged in interstate commerce from compulsory arbitration, but Barrett held that the exemption applied only to transportation workers “actively engaged in the movement of goods across interstate lines.”

That narrow reading of the Constitution’s interstate commerce clause, Shah says, could bode ill for any federal law that relies on a more expansive interpretation of the government’s power to regulate interstate commerce, including not just the Affordable Care Act but the Fair Labor Standards Act, the National Labor Relations Act, and the Civil Rights Act. If a narrower standard were applied to federal labor laws, he says, many employers could be found exempt from their jurisdiction.

The Supreme Court is scheduled to hear oral arguments Nov. 10 on the Trump administration’s latest challenge to the Affordable Care Act. In a 2017 article in the Notre Dame Law Review, Judge Barrett said Justice Roberts’ 2012 opinion that the law’s penalties on individuals who did not purchase health insurance were a valid exercise of the government’s taxing power “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

“If the president gets his way, he and Judge Amy Coney Barrett will be responsible for ripping health care away from millions of working people in the middle of a pandemic,” Service Employees International Union President Mary Kay Henry said in a statement Sept. 26. Instead, she argued, Republican senators should pass a COVID-relief package “that ensures all essential workers have personal protective equipment, paid sick days, and a living wage.”

Barrett is also known for her criticisms of the doctrine that the courts should generally not overrule precedents. While precedents create stability people can rely on, she wrote in a 2013 article in the Texas Law Review, that doctrine should be weaker in constitutional cases.

“If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging,” she wrote, saying that Roe v. Wade’s precedent was “that the right to terminate a pregnancy is a fundamental one.”

Supreme Court justices should “decide cases based on their honestly held beliefs about how the Constitution should be interpreted,” she argued. While a change in personnel might shift the balance of views on the Court, “the fact that a reversal flows from a disagreement between the new majority and its predecessors about constitutional methodology does not itself render the overruling illegitimate, as criticisms of overruling sometimes suggest.”

The ultimate judicial goal of the Koch brothers and the Federalist Society, Shah contends, is to overturn the “New Deal cases” — the Court’s 1937 decisions that state minimum-wage laws were constitutional and that workers had “a fundamental right to organize and select representatives of their own choosing for collective bargaining” — and return to the laissez-faire standard they overruled. That standard was set by the 1905 Lochner v. New York decision, which struck down a New York State law limiting bakers to 60 hours a week on the grounds that it violated freedom of contract. It was the precedent used to void state minimum-wage laws and bans on “yellow-dog contracts” in which employees pledged never to join a union. 

In her Notre Dame Law Review article, Barrett acknowledged that the libertarian arguments for returning to Lochner had a point, but did not endorse it. There is much more sentiment for reversing Roe than there is for reversing the New Deal cases, Shah notes. 

But if Barrett is confirmed to the high court, he says, she “will rule against any government regulation of the economy, but will rule in favor of any government regulation of the private sphere.”

September 28, 2020

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