Portside

AFL-CIO President Richard Trumka delivered the following remarks at Yale Law School on the future of the Supreme Court: 

Good afternoon. It’s great to be back here at Yale. I want to thank the American Constitution Society for your hospitality. I look forward to taking your questions.

“Which side are you on? Which side are you on?” Those are lyrics from a song about a bitter struggle between my union, the United Mine Workers of America, and mine owners in southeastern Kentucky. The song continues, “They say in Harlan County there are no neutrals there. You'll either be a union man or a thug for J.H. Blair.”

Unfortunately, today those lyrics could serve as the fight song for the Supreme Court’s pro-corporate, activist wing of justices who wax poetic about precedent and judicial restraint, yet regularly bend over backwards to serve the interests of the wealthy, the powerful and the privileged. There are no neutrals there.

I was raised in small sliver of southwestern Pennsylvania called Nemacolin. It was a company town. The coal barons owned everything except the church and the union hall. They even printed and paid in money that could only be used at coal-owned businesses. It was called scrip.

One night when I was little, I was complaining to my grandfather about the way the coal company was treating miners like him. He asked what I planned to do about it. “When I grow up, I could be a politician.” Well, that got me a playful smack on the head. Wrong answer. So then I said: “How about a lawyer so I can stand up for workers?” Bingo. That’s what he wanted to hear. Then my grandfather said something that has always stuck with me: “If you want to help workers, you first need to help people.” It was a message about fairness, dignity and justice for all, one the Supreme Court could use a reminder of today.

When it was time to go to work, I followed my father and grandfather into the mines. That’s what Trumka men did.  But I also went to law school at Villanova. I often studied underground using the light from my helmet. From the moment I cracked open a law book, I revered the Supreme Court. It was the temple of justice...the ultimate source of recourse for those without money or political access...people like my grandfather. I revered the Court throughout my time as a lawyer for the Mine Workers. For the majority of my adult life, I put the Supreme Court on a pedestal as the one institution left uncorrupted by the forces of greed and division. And I did so even when the Court made decisions I personally disagreed with, confident that facts and the law were determining outcomes rather than rank ideology. Unfortunately, that reverence is now gone.

Starting with Bush v. Gore in 2000 and continuing through Janus v. AFSCME Council 31earlier this summer, the Court has used its authority to entrench economic and political power in the hands of the elites against a growing number of Americans, and increasingly to foster division on racial, religious and ethnic lines. It is impossible to read the Court’s decisions in major cases over the past two decades without coming to the conclusion that they amount to deck stacking...an effort by the Court in tandem with reactionary political forces to ensure that justice is available only to the wealthy and well-connected.

Sometimes the extra-legal nature of this effort is hard to see. The process at the Supreme Court looks to be fair and free. The opinions are loaded with footnotes and mainstream judicial language. But on closer examination, like a forged work of art, something is wrong. In Bush v. Gore, the statement IN THE OPINION ITSELF that it has NO precedential value tells you all you need to know. In the Court’s decision upholding the president’s Muslim ban, Trump v. Hawaii, the absurd assertion that the policy isn’t motivated by religion is clearly an act of politics, not jurisprudence. And then there is the Janus decision, which I will discuss in detail momentarily.

This blatant judicial overreach threatens our democratic system of government, the integrity of the Court itself and all those who rely on the third branch of government to be free and fair. Without a serious course correction, America is in danger of becoming a company nation.

And let me be clear...this is a systemic problem throughout the federal judiciary. Federal judges at the district and appeals court levels often have the final say in NLRB and OSHA cases. While the Supreme Court decides approximately 80 cases each year, the circuit courts decide some 55,000. So we are absolutely concerned that the Senate is confirming lower court ideologues at an alarming rate, many with no litigation experience and open hostility to civil and workers’ rights.

But ultimately it is the Supreme Court that is responsible for the integrity of our legal system. And there is simply no denying this is the most corporate-friendly, anti-worker court in modern history. And don’t take my word for it. Judge Richard Posner of the Seventh Circuit and the University of Chicago, father of law and economics, and no friend of labor, along with two distinguished academic co-authors, studied all the Court’s decisions from 1947 to 2011 and found that Justice Alito and Chief Justice Roberts are the most pro-business justices to serve during that 64-year period. Justice Thomas is number five. For the 2017-2018 court term, corporations had a stunning 90 percent victory rate. And Brett Kavanaugh would drive that number even higher.

I am a realist. Of course I expect that justices are human and have certain predispositions that affect their decisions. But I also expect judges not to serve as advocates for one side. Now even that line has been crossed by Justice Alito. Understanding Justice Alito’s role as ADVOCATE in Janus is critical to understanding what has gone wrong in the 21st century court.

During his confirmation hearing, Chief Justice Roberts famously pledged, “I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” But when it comes to the law governing public sector unions, his colleague Justice Alito has sought to do all of the above.

It began in 2012 in a little-known case called Knox v. Service Employees International Union, Local 1000, which involved the application of well-settled law permitting unions, required to represent members and nonmembers alike, to spread the cost of representation across the entire group. To be clear, this was not and has never been about politics. An employee has been able to opt out of union political spending for decades. This is about paying for a piece of the collective bargaining and other representation work the union is required to provide. The argument is simple: if you get the benefits, you should bear some of the costs.

A little more than 40 years ago, the Court upheld the constitutionality of fair share fees in Abood v. Detroit Board of Education. All nine members of the Court either joined or concurred in Justice Potter Stewart’s opinion. Seven of those justices, including Stewart, were appointed by Republican presidents.

In 1991, Justice Scalia...Antonin Scalia...explained: “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them.” Until Knox, that principle was not questioned.

Rather, as Justice Kagan recently observed, “over nearly four decades, we have cited Abood favorably numerous times and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining...and those of political activities.”

No party in Knox, not even the National Right to Work Legal Defense Foundation, which has been a relentless critic of public sector unions for half a century, questioned Abood. But Justice Alito did. His opinion, while narrowly deciding the question of whether the union had adequately informed nonmembers about its spending, labeled the four-decade-old precedent “unusual” and even “extraordinary.” As Justice Sotomayor explained, Justice Alito’s opinion was “well outside the scope of the questions presented and brief[ed]” in the case and “breaks [the Court’s] own rules and, more importantly, disregards principles of judicial restraint.”  

Justice Alito continued to chip away at Abood in 2014, citing his own opinion in Knox no fewer than 16 times. In another case involving SEIU, Harris v. Quinn, a 5-4 majority  reversed a unanimous decision by the Seventh Circuit Court of Appeals, authored by a Reagan appointee, which held that a union representing state-paid employees who care for disabled people in their homes can spread the cost of that representation across all employees because they are jointly employed by the state and the patients they care for. Prior to Knox, the Harris plaintiffs, represented by the same anti-worker organization, did not question Abood. But with the door opened by Justice Alito, when the case reached the Supreme Court, they asked for it to be overturned. Justice Alito used the opportunity to pile on, casting doubt on Abood’s soundness and in the words of Justice Kagan’s dissent, “taking potshots” at the longstanding precedent while only holding that it did not apply to what he called “partial public employees.”

Justice Alito’s plan finally came to fruition in June when he decided Janus and, picking up his own trail of breadcrumbs, reversed Abood. Justice Kagan bluntly described Justice Alito’s scheme: “Dicta in those recent decisions indeed began the assault on Abood that has culminated today. Relying on them is bootstrapping—and mocking stare decisis. Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as ‘special justifications’ for departing from stare decisis.”

Let me put this plainly. Justice Alito acted as both advocate and judge in reversing Abood.  There was no neutral there. It’s the type of judicial activism conservatives have long claimed to deplore.

Janus is important not only because of the perversion of process that brought it before the Court, but also for the dangerous principle it articulates. In the apt words of Justice Kagan, the conservative majority has “weaponized the First Amendment.”

This Court doesn’t see the First Amendment as manifesting the rights of working people or protestors or regular Americans, as our founders intended. Instead, they’ve used it almost exclusively to strengthen the hand of corporations.

Of course, Citizens United, the decision allowing corporations to spend unlimited money on electoral campaigns, comes to mind. But, it hasn’t stopped there.

Professor John Coates at...forgive me...Harvard Law School...wrote a fascinating piece that examines parties bringing First Amendment cases before the Supreme Court.  

Coates found that, until the 1950s, virtually no businesses brought First Amendment cases before the Court...with the exception of newspapers. From the 1950s to the 1970s, 20 percent of First Amendment cases were brought by corporations. That jumped to 40 percent after the 1970s.

Corporations’ win rates also spiked dramatically from 20 percent before 1970 to 90 percent today...90%. Coates concludes that “corporations have increasingly displaced individuals as direct beneficiaries of First Amendment rights.”

Does any reasonable person believe the Bill of Rights was adopted to benefit corporations? Is that the legal framework our founders had in mind? Is it what you envisioned when you decided to study law?

Tim Wu at Columbia Law School wrote this: “Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint.”

Justice Breyer warned about the deregulatory use of the First Amendment by the conservative majority in his 2011 dissent of a decision striking down a Vermont law preventing drug companies from buying prescription histories to target consumers. The Court held the law violated the First Amendment because it discriminated against Big Pharma based on the contents of its speech. Breyer said the decision “threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty.”

For generations, the Court made clear through the commercial speech doctrine that economic regulation in the public interest was entirely constitutional. But in this activist era, the Court has perverted the First Amendment to justify an economic power grab...mirroring similar misuse of the 14th Amendment in the Lochner era, where the Court in 1905 struck down a New York law protecting bakery workers from unreasonable hours by citing the amendment’s Due Process clause.

And that brings us back to Janus. At the end of her powerful dissent, Justice Kagan issued an even darker warning about her colleagues’ perversion of the First Amendment: “The majority has chosen the winners by turning the First Amendment into a sword,” she said. “Speech is everywhere—a part of every human activity. For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”

The long road Justice Kagan referenced should concern each and every one of us. Janus is part of an effort by the Court to fundamentally alter the foundation of our democracy so it serves a single purpose...concentrating power and wealth in the hands of a select few. This is not just a moral wrong. It’s a very real, destabilizing threat to our way of life. A 2016 Harvard study...again my apologies...found that only 30 percent of millenials believe it’s essential to live in a democratic nation. 24 percent say democracy is bad. Your generation has experienced our economic and justice system up close and quite frankly, many of you are not impressed. So the radical swing of the Supreme Court is not just an affront to the working people I represent...it poses to a clear and present danger to the broad democratic ideals that have defined America for generations.

And it’s not just Janus. At the end of last term, in less than one month, the court eroded key rights at the center of a thriving and sustainable democracy. In Epic Systems Corp. v. Lewis, the five justices who decided Janus held that employees can be required by companies to submit all workplace grievances to historically pro-employer private arbitrators and waive their rights both to go to court and join together in class action lawsuits. In Husted v. APRI, that same narrow majority upheld Ohio’s practice of purging voters from the registration rolls if they miss a single federal election. And I already mentioned Trump v. Hawaii. In one fell swoop, the Court made it harder to get justice on the job, undermined the right to vote and made it easier to discriminate on the basis of faith.

In this context, the threat to the rights of working people posed by the nomination of Judge Kavanaugh cannot be overstated. His confirmation would potentially lock-in the pro-corporate tilt of the Court for a generation. Despite the assurances he has given the Senate Judiciary Committee this week, Judge Kavanaugh is anything but a neutral. He has been a devoted champion of corporate interests throughout his career.  

Let me give you just two examples.

First, in a case involving a union election at a meat processing plant in Brooklyn, New York, Judge Kavanaugh went a step beyond even the Supreme Court’s draconian ruling that undocumented workers fired for organizing cannot collect back pay. He asserted that undocumented workers are not even employees at all. Kavanaugh would have simply erased 12 million working people from U.S. labor law.  

Second, Judge Kavanaugh has proven his disdain for basic health and safety protections in the workplace.

His opinions drip with contempt for OSHA and other agencies...substituting his own ideology for their expertise. That’s not deference...it’s defiance.

I mentioned earlier that I come from a coal family. My father, both of my grandfathers, my uncles and even some of my cousins all died of Black Lung. As we speak, 150 workers are dying each day of workplace injuries and illnesses—and that number is rising. So I take it personally that in a case challenging an OSHA finding that Sea World violated workplace safety law, leading to the death of a trainer during a performance, Kavanaugh essentially argued that the worker knew what they were getting into. He wrote: “When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants.”

Sound familiar? The same justification was used to deny justice to miners who “willingly” went underground to support our families despite known dangers. The graveyards of western Pennsylvania are filled with the bodies of men whose families were desperate for the “paternalism’ Judge Kavanaugh blithely writes about.  But for the “paternalism” of MSHA and the NLRB, I doubt I would even be standing before you today I cannot properly express to you the depth of my anger when I read those words of Judge Kavanaugh. I see the faces of my family, my friends, my brothers and sisters whose lives were saved by that “paternalism.”

Judge Kavanaugh would return workplace law to the 19th century. He would ignore the statutory will of Congress and the expertise of regulating agencies. He would deny working people our most fundamental rights. And that’s exactly why he was nominated. He’s been vetted and rubber stamped by the very same people who’ve been pulling the strings since Bush v. Gore, seeking to frustrate American democracy and guarantee that money and privilege rule this country for the rest of my life and yours. That’s why I am proud to be among those who have pledged to fight and defeat his nomination.

But the larger question is, how do people like you and institutions like this respond to a Court gone awry? Alexis de Tocqueville said almost two hundred years ago that lawyers were America’s bulwark against tyranny. How should the legal profession respond to an anti-democratic impulse at its highest levels? That will be your task when you leave this campus. Let me suggest that we need to begin by recognizing that decisions like Bush v. Gore, Citizens United, Trump v. Hawaii and Janus v. AFSCME should be given more than casual scrutiny by lawyers, law professors and judges. It is time to look at these rulings as a body...with historic implications beyond the scope of each individual case. And perhaps given their origins in an effort to frustrate the normal workings of our democracy and our laws, we need to consider whether in the future they should be accorded a special status in American judicial infamy, taking their place with other monuments to fear and division like Dred Scott and Korematsu.

I want to revere the Supreme Court again. But to regain the trust and reverence of the American people and save our democracy in the process, the president must appoint and Congress must confirm only justices capable of being neutral. Brett Kavanaugh fails this test. He would drive the Court even further into the pocket of corporations. And that’s why we oppose his nomination.

Thank you very much.