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Tilting at Windmills

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July 10, 2008
By: Kevin Drum

LABOR AND THE SUPREME COURT....Nathan Newman, still annoyed, wishes liberal blogs would spend a smidgen less time on handgun and death penalty cases decided by the Supreme Court, and a smidgen more time on labor and business cases:

As I noted last week, state regulations of business lost out in nearly every single case decided [this term], and even the "liberal" Justices joined many if not most of the major decisions. Which reflects modern elite liberalism too well that you can distinguish liberals from conservatives on a death penalty case, but when corporations are trashing workers rights, suddenly the differences can get a little fuzzy.

And what really annoys me is that in the major union decision of the term, Chamber of Commerce v. Brown, one of the most anti-union results in decades, there was essentially zero commentary across the blogs....I can almost guarantee that if in a side comment Obama had said something nice about Chamber of Commerce v. Brown, most of the blogs wouldn't have noticed since they wouldn't know what it was.

Totally guilty here. This was the first I'd ever heard of this case. So I read up on it, and the nickel version is this: California passed a law saying that companies that receive state funds can't use those state funds to "assist, promote, or deter" union organizing campaigns. They can use their own money, but they can't use any of California's money. The 9th Circuit upheld the law, but last month the Supreme Court struck it down.

Unfortunately, there's a big problem here even for bloggers like me who mouth off on all sorts of issues that we don't have a lot of expertise on: I have no idea whether this decision was correct. Sure, I'm generally pro-union, and the California law was also pro-union since it made it harder for companies to run union-busting campaigns. But just because I'm pro-union doesn't mean the Supremes got the law wrong here. In the end, their decision was based on some fairly specialized NLRA statutory law, and I can't even pretend to know anything about this. Basically, they decided that the NLRA overrode state law since, in practice, the regulatory effect of the California law put a big enough burden on corporations that it effectively kept them from speaking out on union issues at all. And the NLRA clearly states that corporations are allowed to speak out on union issues.

So....I don't know. But I will say one thing: this case goes to show, once again, that it's the other branches of government we should really be worried about when it comes to stuff like this. NLRA is statutory law, not part of the constitution, and Congress can modify it any time it likes. The same goes for most business/labor issues decided by the court, which are overwhelmingly based on interpretations of statutory law. The Supreme Court only gets to continually narrow the law if Congress sits by and lets them, and if we elect a better Congress and a better president they can override decisions like this and the Supremes don't get a vote. So let's do that, OK?

Kevin Drum 2:56 PM Permalink | Trackbacks | Comments (42)

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Comments

So....I don't know. But I will say one thing: this case goes to show, once again, that it's the other branches of government we should really be worried about when it comes to stuff like this. NLRA is statutory law, not part of the constitution, and Congress can modify it any time it likes

This is one of the lamest excuses ever. Title VII, the environment, and all sorts of other topics are also statutory.

Posted by: Duncan Kinder on July 10, 2008 at 3:07 PM | PERMALINK

This is one of the lamest excuses ever. Title VII, the environment, and all sorts of other topics are also statutory.

Right. It's not like you or any of the dozens of other big libloggers out there who frequently comment on other SCOTUS issues are experts on them, either. This betrays a general lack of interest: you don't know anything about the law because you don't read much about the issue.

Posted by: strasmangelo jones on July 10, 2008 at 3:19 PM | PERMALINK

Kevin -

Your post is one of the reasons I enjoy reading your blog and get so frustrated at others. Other than a few results-driven opinions that tend to be politically based (Heller is a prime example from this year's docket), the bulk of Supreme Court opinions are not ideological in nature. Carping about something like the interpretation of ERISA or the NLRA is either boring (if it's accurate) or obnoxious (if it's just about how the gov'mint hurt the little people regardless of what the law actually said). Keeping the focus on policy that can be changed rather than on specific cases where the courts had their hands tied by poorly written or bad laws is what makes your blog something that leads to enlightenment rather than whining. Lead the way oh policy Buddha!

Posted by: Anon on July 10, 2008 at 3:19 PM | PERMALINK

...if we elect a better Congress and a better president they can override decisions like this and the Supremes don't get a vote.
But if Obama doesn't perfectly do everything I want him to, I'll have no choice but to vote for McCain.

Posted by: AJB on July 10, 2008 at 3:23 PM | PERMALINK

Kevin,

I'm impressed. You get it. Just because a Supreme Court decision reaches a result you might not like doesn't have a hell of a lot to do with whether it's correctly decided or not, espcially, as you note, in statutory cases. Maybe you could send a note to the NYT, they continue to regard the Court as a Super Legislature that can do whatever it wants for any reason.

Posted by: DBL on July 10, 2008 at 3:27 PM | PERMALINK

Duncan: What's lame about it? Some issues (abortion, affirmative action) tend to be decided on constitutional grounds, which means the composition of the Supreme court is vitally important. Others are statutory, which means Congress has the final say if they get off their butts and say something. That's just the way it is.

Strasmangelo: Actually, I don't comment on deep details of Supreme Court decisions all that often. But that aside, there's a big difference here: it's one thing to have an opinion about the 2nd Amendment, which is a pretty straightforward piece of text with little case history behind it, but it's quite another to have an opinion about an extremely complex and specialized piece of law like the NLRA with a ton of case history behind it. It's just a lot harder for a layman to say something intelligent about the latter.

Posted by: Kevin Drum on July 10, 2008 at 3:28 PM | PERMALINK

Blame Bill Clinton. He followed Bush I on making the NLRB into the National Management Relations Board.

Otherwise, Kevin is right; SCOTUS, unless it wants to go well beyond "activism," can only do certain things.

Posted by: SocraticGadfly on July 10, 2008 at 3:45 PM | PERMALINK

"...companies that receive state funds"

Makes it sound like they're collecting welfare checks and using public money for labor bashing.

If companies sell goods or services to the state, seems to me this money just goes into the pool of revenues like from any other sale.

Posted by: Luther on July 10, 2008 at 3:46 PM | PERMALINK

Right. It's not like you or any of the dozens of other big libloggers out there who frequently comment on other SCOTUS issues are experts on them, either. -Strasmangelo

I recall that McCain commented on the Habeas Corpus SCOTUS ruling and hes not a lawyer or an expert on them either. So your point is moot if you dont criticise McCain or the RWN blogs for commenting on SCOTUS issues. This guys for the pundits as well.

Posted by: Jet on July 10, 2008 at 3:48 PM | PERMALINK

What AJB said at 3:23.

Obama's not perfect. I voted for him and now, sometimes, I wish I hadn't. But when you consider the alternative...

None of us likes to vote while holding our nose, but there are some smells worse than others.

Posted by: thersites on July 10, 2008 at 3:56 PM | PERMALINK

"Unfortunately, there's a big problem here even for bloggers like me who mouth off on all sorts of issues that we don't have a lot of expertise on: I have no idea whether this decision was correct."

And, what, the bloggers talking about Heller or the death penalty decision are experts on the 2nd and 8th Amendments?

Please.

Posted by: PTS on July 10, 2008 at 4:03 PM | PERMALINK

It's not really all that specialized. Preemption is a broadly used doctrine, and it nearly always supports conservative goals. There's been a general move for courts to say that federal legislation on an issue restrains states from acting on the same topic, even if the conflict between the federal and state laws is fairly minimal.

And the point is not whether Congress could change the NLRB. The issue is: can California decide to be more union-friendly than the Federal government has chosen to be? This says no.


Posted by: Ben on July 10, 2008 at 4:07 PM | PERMALINK

Good post Kevin. I'm a lawyer & a federal appellate clerk, and many of these statutory cases in the labor, environment, employment discrimination & general business contexts are incredibly complex and do not lend themselves well to lay-person analysis.

I do wish that more people could get behind legislative fix-it efforts when they do occur, however -- see the Lily Ledbetter pay discrimination case (last year) and the efforts to fix the Supremes' ridiculous 5-4 decision interpreting the filing deadline in such situations.

Posted by: J on July 10, 2008 at 4:10 PM | PERMALINK

This decision simply separates the government sectot from micromanaging business decisions. legislatures need to do thing better if they cannot get what they want.

Posted by: Matt on July 10, 2008 at 4:14 PM | PERMALINK

Chamber of Commerce v Brown offends Nathan Newman because he liked the California statute at issue for policy reasons, and doesn't like the NLRB regulation that the Supreme Court concluded was inconsistent with the state statute. Mr. Newman does not take any notice of the principles of federal preemption and statutory construction on which the decision turns. If somebody were trying to use an anti-labor state statute to trump a pro-labor federal regulation, Mr. Newman would probably be enthusiastic about federal preemption.

The fact of the matter is that the policy issues important to Mr. Newman (and about which I generally agree with Mr. Newman) have nothing to do with the outcome of this case, and properly so.

Posted by: rea on July 10, 2008 at 4:43 PM | PERMALINK

Expect a challenge to child labor laws and a majority decision by the SC that they are unconstitutional.

Posted by: Zoolander on July 10, 2008 at 5:11 PM | PERMALINK

I would like more interest given to labor and employment cases, and, even more so, labor and employment pending legislation (support the ADA Restoration Act and the Ledbetter Fair Pay Act!!)
However, contrary to Mr. Newman's high dudgeon, the employment law cases decided this Term have been surprisingly employee-friendly (or at least, surprisingly not employee-hostile):

Federal Express v. Holowecki - liberally interpreting the requirement that an employee file a charge of discrimination with the EEOC before filing a civil action

Sprint v. Mendehlsson - Court declined the opportunity to vastly limit the types of evidence of discrimination that employees can use

CBOCS v. Humphries - re-affirmed the existence of retaliation claims under Section 1981 (race discrimination in contractual settings)

Meacham v. Knolls Atomic Power - interpreting burden of proof in age discrimination disparate impact cases favorably for employees

MetLife v. Glenn - an individual challenging a denial of benefits under ERISA can argue that the plan has a conflict of interest if it both interprets and funds the plan.

The only negative cases were:
Engquist v. Oregon - long shot for employee anyway, rejected "class of one" claims against government by government employees

Kentucky REtirement Systems v. EEOC - deciding that a disability benefit plan that discriminated on the basis of an age/years of service combination did not violate the ADEA. This decision, however, was not along partisan lines - Breyer, Souter, Stevens, Roberts, and Thomas in the majority; Kennedy, Scalia, Ginsburg, and Alito dissenting.

Posted by: Employment Lawyer on July 10, 2008 at 5:13 PM | PERMALINK

Employment Lawyer: A bit more disclosure.

Do you work for the Department of Labor? A state's department of labor? The EEOC?

Or a corporation?

You ignored the Goodyear case, even though mentioning the Ledbetter Fair Pay Act, which is designed to reverse an egregious anti-employee SCOTUS ruling.

Posted by: SocraticGadfly on July 10, 2008 at 5:23 PM | PERMALINK

"If somebody were trying to use an anti-labor state statute to trump a pro-labor federal regulation, Mr. Newman would probably be enthusiastic about federal preemption."

I don't know about Mr. Newman but I think it's a pretty safe bet that in that situation Mr. Thomas, Mr. Scalia, Mr. Alito and Mr. Roberts would be a *lot* less enamored of federal presumption....

Posted by: chaboard on July 10, 2008 at 5:29 PM | PERMALINK

Duncan: What's lame about it? Some issues (abortion, affirmative action) tend to be decided on constitutional grounds, which means the composition of the Supreme court is vitally important. Others are statutory, which means Congress has the final say if they get off their butts and say something. That's just the way it is.

Oh please.

If we follow this logic then, Kevin, no further blogging on:


    • Intellectual Property
        Environment
          Civil Rights Statutes
            Antitrust
              Securities law
                Bankruptcy
                  Taxation
                    Any other no-constitutional issues whatsoever.


  • As for the problem with leaving this to Congress, let me spell it out for you: "F-I-S-A"

    There are many instances where judicial interpretation has profoundly altered statutory law. For example, once upon a time, the concept that "big is bad" was part of antitrust law; it no longer is because of judicial interpretation.

    As for the idea that this is all too complex for hoi polloi to understand, the same could be argued about anything and everything that comes before the Supreme Court.

    So, Kevin, no more Supreme Court blogging for you.

    Posted by: Duncan Kinder on July 10, 2008 at 5:31 PM | PERMALINK

    Did not the Exxon damages reduction decision turn in good part on interpretation of admiralty law? I thought this might be another instance in which it would be difficult for the layman to have an informed opinion.

    Posted by: Will Allen on July 10, 2008 at 5:35 PM | PERMALINK

    I think everybody's kind missing the point here. Nathan Newman thinks that the outcome in Chamber of Commerce v. Brown is bad for the country (I agree, as it happens). Whether you think that this should be addressed by appointing more liberal justices to the Supreme Court (after all, 2 of the justices felt that this decision was incorrect, so it's not like it was a total slam dunk on the legal merits), or whether you think that the Supremes made the right call and the relevant laws should be changed by Congress, the point is that something (in Nathan's opinion, anyway), needs to be done. And if nobody in the progressive community is pushing for change, then it's not going to happen, because rest assured, the corporations will be pushing the status quo.

    Or, to put it another way, Kevin says:
    Some issues (abortion, affirmative action) tend to be decided on constitutional grounds, which means the composition of the Supreme court is vitally important. Others are statutory, which means Congress has the final say if they get off their butts and say something. That's just the way it is.
    Yes, but that doesn't mean that statutory issues aren't worthy of our attention. Congress won't get off their butts unaided.

    Posted by: OhioBoy on July 10, 2008 at 5:37 PM | PERMALINK

    DBL,

    Maybe you could send a note to the NYT, they continue to regard the Court as a Super Legislature that can do whatever it wants for any reason.

    And yet, there is still the 2000 decision in which they appointed Bush President based essentially on no law at all. They simply preferred that result. Then they stated in the decision that it could not be considered precedent.

    And somehow they are NOT a super legislature?? They sure seem to be treated like they are.

    They CAN do whatever they want!

    Posted by: Rick B on July 10, 2008 at 5:37 PM | PERMALINK

    Regarding Kevin's contention that The Supreme Court only gets to continually narrow the law if Congress sits by and lets them, and if we elect a better Congress and a better president they can override decisions like this and the Supremes don't get a vote. So let's do that, OK

    Note that Kevin, in his post, CONGRESS AND WAR, states:

    If members of Congress could get away with never voting on anything, they'd probably do it.

    So let me get this straight, Kevin. You think that Congress is so worthless that it cannot even decide when and how we go to war but, nevertheless, we can blithely leave our labor policy to it?

    And for the purported deep metaphysical complexities of the NLRA, here's a link to the text. It's notoriously short - shorter than some of your posts, actually.

    Posted by: Duncan Kinder on July 10, 2008 at 6:03 PM | PERMALINK
    And yet, there is still the 2000 decision in which they appointed Bush President based essentially on no law at all. They simply preferred that result. Then they stated in the decision that it could not be considered precedent.

    And somehow they are NOT a super legislature??

    No, they transcend that: they are a super electorate, rendering the common electorate superfluous at their whim.

    Posted by: cmdicely on July 10, 2008 at 6:52 PM | PERMALINK
    The Supreme Court only gets to continually narrow the law if Congress sits by and lets them, and if we elect a better Congress and a better president they can override decisions like this and the Supremes don't get a vote.

    This is amusingly naive. Whose interpretation do you think controls how the changed law is applied after Congress acts?

    Posted by: cmdicely on July 10, 2008 at 6:54 PM | PERMALINK

    And maybe a bit less time on FISA while they're at it. Is there anything going on in the world right now other than FISA, guns, and the death penalty?

    Posted by: Steve Simitzis on July 10, 2008 at 8:54 PM | PERMALINK

    Just another, of many, examples of how the self-proclaimed "advertise liberally" circle-jerk has never been about progressive or liberal ideas.

    Even more proof is that those that have stolen the proud traditions of liberal ACTION refuse to actually do anything that would organize people.

    Its all about raising money - and folks, that ain't really gonna do it. To get the corpocracy's attention, we have to WITHHOLD monies - economic boycotts.

    But the "advertise liberally" clusterf@ck is just about self-promotion and more of the "you can buy your way out of anything" cult.

    Really, its just an extension of consumer attitudes that we should just all shop.

    Posted by: on July 10, 2008 at 10:03 PM | PERMALINK

    It's not like you or any of the dozens of other big libloggers out there who frequently comment on other SCOTUS issues are experts on them, either.

    damn straight, strasmangelo jones

    My favorite example is firedoglake - they "rose" to the center of the circle-jerk with 24/7 fitzmas bloggin' - all patrick fitzgerald all the time.

    Endless speculation and rumors - always wrong, but always back the next day with more.

    In the end, they got nothing right, but ended up being the "Plamegate" experts across the same sorry set of faux liberal blogs.

    If you put a million monkeys in a room with keyboards, and linked each monkey's rambling to the next monkey jibberish post, you would recreate the "advertise liberally" crowd.

    Posted by: on July 10, 2008 at 10:07 PM | PERMALINK

    I think the economic situation in the United States is incredibly bad and getting worse and we are worrying about Barack Obama's daughters being interviewed. If FNMA and/or FHLMC go down, we are truly screwed.

    Posted by: The Conservative Deflator on July 10, 2008 at 10:16 PM | PERMALINK

    The Conservative Deflator

    Good point, but what we should really be worried about is the shams that obama will pull-off in the name of helping the "economically disadvantaged".

    Just like his slick talk on FISA, the Iraq war, and "personal responsibility" - his actions speak much louder than words and what he does is the EXACT OPPOSITE of what he says.

    Just ask people in Chicago housing projects about Obama's Shameful Housing Record

    Must-see video for those that think obama is anything other than a corporate shill.

    Posted by: Mike on July 10, 2008 at 10:52 PM | PERMALINK

    justice will be blind

    Posted by: on July 11, 2008 at 3:31 AM | PERMALINK

    Must-see video for those that think obama is anything other than a corporate shill.
    Posted by: Mike

    And you think McCain is not?

    At first he was a madrassah student, then a Christian, and now a corporate shill [like McCain]

    Seems to me your desperate to frame Obama in your narrow opinion.

    Posted by: on July 11, 2008 at 3:36 AM | PERMALINK

    The criticism of Kevin is nuts. He didn't say that non-labor law law experts can't express opinions, or that he needs to be an expert before he expresses an opinion on any subject. He said that he needed to know more than "union lost and I'm pro-union" before thinking he had something useful to say. He has no obligation to have something useful to say on every issue under the sun. And the CofC case seems like a poor candidate for being a decision that every decent citizen should know, understand, or even care about.
    On the other hand, if he dug into it he would find this isn't as complicated as he thinks. But we all do that--if it's a black box, we don't know how hard it will be to understand its mysteries, and there's not enough hours in the day to open every black box.

    Posted by: tigertears on July 11, 2008 at 6:59 AM | PERMALINK

    Pretty much the thrust of the NYT Mag article a few months back. SCOTUS tends to rule in favor of People Like Us.

    Posted by: Steve Paradis on July 11, 2008 at 8:37 AM | PERMALINK

    Too many so-called liberal bloggers are from upper-middle class backgrounds and don't know or care very much about labor issues.

    Posted by: ColinLaney on July 11, 2008 at 9:32 AM | PERMALINK

    There are two things wrong with Kevin's interpretation here- the law and the history.

    Except for a few very limited cases, you cannot take an issue to the Supreme Court unless there is a question of Constitutional law involved. The Congress cannot over-ride or evade the Supreme Court by writing new laws or modifying old ones.

    Secondly, and this is what you'll see in Obama's first term, the state and federal Supreme Courts have traditionally canceled progressive legislation on "Constitutional" grounds.

    Page Smith noted that "Up to 1911, the Supreme Court intervened in fifty-nine cases involving the Fourteenth Amendment. Thirty-nine of these involved private corporations seeking the protection of a law intended to protect the rights of newly freed blacks. Only three concerned the civil rights of blacks."

    Whatever progressive legislation you see passed in the next four years will eventually go to the Supreme Court and be struck down by a 5-4 vote. If you need more education in this, William O. Douglas's Go East, Young Man talks in part about what happened to Roosevelt, and in addition is a good read.

    My personal feeling is that if McCain wins and appoints one more la-la land Federalist Society judge to the Court, it may be necessary to have a second American Revolution to meet the crisis of AGW- an event I would never have believed to be remotely possible until this year.

    Posted by: serial catowner on July 11, 2008 at 10:55 AM | PERMALINK

    McCain is not the only one who is clueless on economic issues.

    Posted by: skeptonomist on July 11, 2008 at 11:06 AM | PERMALINK

    Months ago I was watching a program, Charlie Rose?, where John Grisham, still a practicing lawyer, said that the Virginia Court of Appeals had been so conservatized that not one plaintiff had won against a corporation. I am not sure if he meant that session or over a longer period. But it does not bode well if corporations cannot be held to account.

    Posted by: emjay on July 11, 2008 at 12:50 PM | PERMALINK

    Kevin: I'm glad to see you getting out a little coverage of this. The Republican judiciary, egged on by the national Chamber of Commerce, has been promoting "preemption" of state law as a way to protect big business from inconvenient state laws that usually involve consumer protection. Under the guise of appointing "strict constructionist" judges, the courts have been conducting a massive campaign of judicial activism to restrict the power of states to protect their citizens. Your point about the super-liberal elitism of liberal judges such as Breyer and Ginsburg, who should know better, is sad but true. Ginsburg joined the Watters decision which immunized from state predatory lending law mortgage companies affiliated with national banks, all just in time for the subprime crisis. Enron and other electricity marketers gamed California into a terrible energy crisis and the federal courts protected them from having to defend damage suits --again on the dubious ground of "preemption" of state law by federal regulatory statutes. These are not “strict constructionist” decisions, but rather pro-business activism. The Supreme Court is now preparing to grant big pharma blanket immunity against state damage suits for any FDA approved drug or medical device. Is this because the FDA is infallible or because it is in the pocket of industry? Logic alone tells us that even the best designed pharmaceutical studies presented to the FDA are based on small samples over limited time frames, and mass marketing of drugs and devices may reveal major health hazards when marketed pervasively to the general public. Can you imagine our august courts denying damages to disfigured Thalidomide babies because the FDA didn’t identify the risk? That’s what would happen if the same issue came up today.

    The ultimate irony if not cynicism is that the Republican party that rails against "regulation" has trained its judges to assert that "preemption" is necessary to protect the regulatory prerogatives of toothless, industry servant regulators such as the FDA, the Federal Energy Regulatory Commission and all the rest. The "liberals," Breyer and Ginsburg, go along with this because they think they are protecting vestigial New Deal institutions, when the Republicans turned those institutions against ordinary people years ago. The ultimate irony is that the only judges that are reliable votes against this travesty are Scalia, Thomas and Stevens.

    Posted by: Ty Kelly on July 11, 2008 at 5:23 PM | PERMALINK

    These issues are not that hard and anyone who cares can become familiar with them. See, e.g., this debate over the Brown case, http://www.scotusblog.com/wp/government-recommends-grant-in-no-06-939-chamber-of-commerce-v-brown/

    Saying "I don't know enough to comment" simply means that you don't care enough to comment. A liberal blogger really should consider whether the labor movement's ability to organize workers is something worth learning about.

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