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Conservative Supreme Court Activism Risks Backlash

Law360—Expert Analysis - Opinion—By Michael Scimone and Jahan Sagafi

As the Senate considers Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, including his potential impact on legal protections for workers, it is useful to reflect on the court’s three 5-4 anti-worker decisions of the last term. The court’s decisions in Janus v. AFSCME , Lewis v. Epic Systems  and Encino Motorcars v. Navarro , each of which broke with norms of judicial restraint, could not have happened without — and in many ways were foreordained by — the norm-shattering decision of Senate Majority Leader Mitch McConnell, R-Ky., to kill President Barack Obama’s nomination of Judge Merrick Garland. One of the cruel ironies of 2016 was that, in the midst of an election fueled by skepticism about the government’s responsiveness to the broader public interest and economic anxiety, the Republican-controlled Senate shut down its own advice-and-consent function to preserve a "conservative" Supreme Court majority that has gone out of its way to strike democratically enacted worker protections at every turn. And as much as these dramatic swings have reshaped the substantive rules of the workplace, they have also upended the norms regarding how judges should act — in ways that should make the public, as well as advocates, nervous about what comes next.

The Janus decision illustrates the problem. Much as the Senate Republicans have shown a willingness to adjust the pace of judicial confirmations to suit their political preferences, the conservative bloc on the court has staked out an approach to stare decisis that can easily bend to the political preferences of the court’s dominant wing. This may be a good way to motivate a party’s base, but it does little to promote stability in the law. The Janus decision’s slanted application of stare decisis is transparently political: Part VI.C.1. of the majority opinion argues that earlier precedent allowing agency fees has been undermined because unions have "undoubtedly" become a drain on the public fisc. That is a political position — one that drew amicus briefs on both sides — and forms the content of the political speech at issue, rather than the rules regarding such speech. To assert that a political debate has taken on a new "political valence" because one side has made a political impact is simply taking sides in the debate. Any political speech that raises First Amendment questions will occur in the context of a changing political reality, but that is no justification for changing the rules of the debate midstream by reversing a 41-year-old precedent. It is judicial activism, not conservativism.

The norm of stare decisis is not the only judicial restraint that the court’s right flank has chafed against. In Epic Systems, the court-as-legislature simply chose one federal law over two others, in one of the weakest applications of textualist jurisprudence we have seen. Justice Neil Gorsuch’s opinion claimed to find no basis in the text of NLRA or the Norris-LaGuardia Act to support the commonsense notion that concerted litigation is concerted activity; for that reason, it held, individual arbitration may be compelled under the Federal Arbitration Act. But the text of Section 104(d) of Norris-LaGuardia says exactly that: it specifically bars contracts that prohibit a person from aiding a litigant prosecuting a labor dispute in court.

Yet textualism practically vanishes in Justice Gorsuch’s analysis of the FAA: The idea that the FAA somehow prefers individual arbitration between worker and employer (a notion far beyond the FAA’s origins in preserving business-to-business arbitration of contractual disputes) finds its root in the idea that non-individual proceedings are inconsistent with a “liberal” federal policy favoring arbitration; yet as the same court majority just told us in Encino Motorcars  v. Navarro  (rejecting the 58-year-old norm that Fair Labor Standards Act exemptions should be narrowly construed), there is no reason to allow a law’s policy to guide its interpretation unless there is a "textual indication" that courts should do so. There is none in the FAA. This selective deployment of textualism undermines yet another judicial norm: that judges should apply neutral principles consistently, without regard to their own policy-driven preferences. Neither is this judicial conservativism. This signifies a new Lochner era, in which judicial fetishization of contract rights trumps democratically enacted laws that protect workers’ health and welfare.

It is tempting for advocates with their own strong policy opinions to crow over "highlights" and "lowlights" in cases like these; but we also owe it to our clients to consider the long view. The Senate’s consideration of Judge Kavanaugh offers an opportunity for a deeper discussion of the proper role of the courts and judicial norms. Many of Judge Kavanaugh’s sponsors hope to continue the right-wing, anti-worker Supreme Court majority for many years, but majorities change. A liberal Democratic base, outraged by the court’s rightward lurch, will demand an equal and opposite reaction. And conservative judicial activism flies in the face of what the majority of Americans voted for in 2016: politics that are much more inclusive, balanced and respectful of individual economic security and freedom. With stare decisis, judicial restraint and statutory text given such short shrift by the current court, it should not be hard for a future court to fault decisions like Epic Systems for inconsistent logic and weak fidelity to Constitutional mandates. This promises to make the next decades turbulent ones for advocates representing any party in the workplace. The best argument for a neutral judiciary that can rise above partisan politics is that it promotes long-term stability in our constitutional framework. The loss of that stability should trouble us all.