Under Chief Justice John Roberts, the supreme court has been supremely pro-corporate – one study even called the Roberts court “the most pro-business court in history”. Not only have many justices been groomed and vetted by the business-backed Federalist Society, but Clarence Thomas and Samuel Alito have taken lavish favors from billionaire corporate titans. Thomas has even spoken at two Koch network fundraising “donor summits”, gatherings of rightwing, ultra-wealthy business barons.
While the court is decidedly pro-corporate, most Americans probably don’t know just how anti-worker and anti-union it really is. The justices have often shown a stunning callousness toward workers, and that means a callousness toward average Americans. One of the most egregious examples was a 2014 ruling – with an opinion written by Thomas – that held that Amazon, which holds workers up to 25 minutes after the ends of their shifts waiting to be screened to ensure they didn’t steal anything, doesn’t have to pay them for that time.
Or take this month’s decision in which the court ruled in favor of Starbucks by making it harder for the National Labor Relations Board (NLRB) to win rapid reinstatement of workers who are illegally fired for supporting a union. In that case, Starbucks fired five of the six baristas who were heading an effort to unionize a Memphis Starbucks. After NLRB officials found that the workers had been fired unlawfully for backing a union, a federal judge agreed to the NLRB’s request to issue an injunction to quickly reinstate them. Many labor relations experts say it’s important for the NLRB to be able to win quick reinstatement after companies fire workers who lead unionization drives, as Starbucks has repeatedly done, because those firings often terrify co-workers and cause union drives to collapse.
Writing the court’s majority opinion, Thomas ignored all that, oblivious to the injustices and suffering that many workers face when they exercise their right to form a union. Thomas said that federal judges, when issuing such injunctions, should follow a more exacting four-part test, rather than the worker-friendly two-part test the NLRB favored. Thomas’s opinion also ignored some glaring facts: the union has accused Starbucks of firing 150 pro-union baristas, and the NLRB has accused Starbucks of an astoundingly high number of violations of the law – 436 – in its efforts to block unionization.
In contrast to Thomas, Ketanji Brown Jackson, in a partial concurrence and partial dissent, acknowledged the injustices and delays that pro-union workers often face. She wrote that “Congress, in enacting the National Labor Relations Act, recognized that delay in vindicating labor rights ‘during the “notoriously glacial” course of NLRB proceedings’ can lead to their defeat”. Jackson noted that the litigation over reinstating the Memphis baristas had dragged on for two years. (It was dismaying that Justices Elena Kagan and Sonia Sotomayor signed Thomas’s soulless, unsympathetic majority opinion rather than Jackson’s.)
A 2022 study found that of the 57 justices who have sat on the court over the past century, the six justices with the most pro-business voting records are the six members of today’s 6-3, rightwing super-majority, all appointed by Republican presidents: Thomas, Alito, Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The study found that Donald Trump’s three appointees – Gorsuch, Kavanaugh and Barrett – were the three most pro-business justices of the 57 evaluated. (That study also found that the court’s Democratic appointees at the time – Kagan, Sotomayor and Stephen Breyer – were among the top 20 pro-business justices.)
All this is a far cry from when some justices were true champions of workers. Arthur Goldberg had been the general counsel of the United Steelworkers and served as secretary of labor under John F Kennedy. Justice William J Brennan Jr, whose father was a union official, was famous for going to bat for workers. As a lawyer, Louis Brandeis filed famous, detailed supreme court briefs in cases that sought to uphold pro-worker laws.
In sharp contrast, today’s conservative judges seem to almost reflexively rule against workers and unions. They seem to view workers and unions as unwelcome nuisances that are seeking to make life difficult for corporations as they pursue their noble mission of maximizing their profits and share prices.
Take the court’s 5-4 Epic Systems ruling of 2018. Gorsuch’s majority opinion blessed corporations’ efforts to prohibit workers from filing class-action lawsuits. It instead let employers require employees to pursue their grievances through individual, closed-door arbitrations, which greatly favor employers, according to various studies. Because lawyers are far less willing to take individual worker cases than class actions, Epic Systems gutted workers’ ability to vindicate their rights against sexual harassment, racial discrimination and wage theft.
In her dissent, Justice Ruth Bader Ginsburg called the majority opinion “egregiously wrong”. She also said the ruling would result in “huge under-enforcement of federal and state statutes designed to advance the wellbeing of vulnerable workers”. Ginsburg added that it’s difficult and potentially perilous to pursue small claims individually. “By joining hands in litigation,” she wrote, “workers can spread the costs of litigation and reduce the risk of employer retaliation.”
Another case that showed shocking insensitivity toward workers’ concerns was the 2007 Lilly Ledbetter case. Ledbetter was a supervisor at a Goodyear tire plant in Alabama, where for years she earned substantially less than the 16 men at the same management level. That pay discrimination was hidden from her, and she learned of it only after more than 15 years on the job. Alito wrote the court’s inflexible, unsympathetic 5-4 majority opinion, ruling that her case should be thrown out because she had failed to file her complaint within 180 days after her pay was set, as the law called for.
Ginsburg angrily dissented, writing that the ruling “is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure”. Ginsburg added that Alito’s majority opinion “does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination”.
There have been some recent anti-union cases. Last year, in Glacier Northwest, the court made it easier for corporations to sue unions for any financial damage they suffer when workers go on strike – a ruling that could discourage workers from using their most powerful form of leverage. In 2021, in the Cedar Point Nursery case, the court put property rights far above worker rights and union rights when it overturned part of a California law, inspired by Cesar Chavez, that granted union organizers a right to go on farm owners’ property to speak with farm workers.
By far the most important anti-union decision in recent years was Janus v. AFSCME, a 5-4 ruling, written by Alito, in which the court held that requiring government employees to pay fees to their union violated their first amendment rights. That ruling allowed any federal, state or local government employees to opt out of paying union fees – and was immediately seen as a blow that would weaken unions and their treasuries. Ten minutes after the court issued that decision, then president Trump tweeted: “Big loss for the coffers of the Democrats!”
The Janus case was underwritten by rightwing foundations and billionaire corporate powerhouses, including Richard Uihlein and the Koch Brothers. (Remember, Clarence Thomas attended their “donor summits”.)
The supreme court’s approval ratings have fallen to a record low. Many Americans think the court is corrupt and has lost its way – its justices take all-expenses-paid vacations with billionaires, fail to disclose gifts, ignore blatant conflicts of interest, and one justice’s home hung an upside-down flag apparently showing sympathy for Trump’s “Stop the Steal” movement.
One easy step the court can take to begin an effort to regain respect and popularity would be to be stop ruling so often in favor of multibillion corporations and instead side with workers, eg typical Americans – and with labor unions, institutions that fight to improve the lives of average Americans. It just might help, and would further the cause of justice, if the court were to show that it cares more about embattled workers than about billionaires and faceless corporations.
Steven Greenhouse, a senior fellow at the Century Foundation, is an American labor and workplace journalist and writer
