Prior to his 1916 Supreme Court appointment, Louis Brandeis spent his years as a lawyer determined to use the legal system on behalf of progressive causes.
His farsighted notion was that the courts could uphold and implement legislative intent even when corporate interests created obstacles to sustain their stranglehold on working people.
Labor laws often languished on the books as the powerful found ways to block them. For example, legal challenges were brought against the first minimum wage laws and shortened work week for female workers who were subjected to exploitive work hours.
To protect those laws, Brandeis found precedents and legal language tucked into existing laws and judicial rulings. He developed what became known as the “Brandeis Brief.” He built case history and found expert witnesses to prevail against the corporate legal maneuvers. Advocates of our day who take to the courts to protect labor are carrying on his legacy.
Unfortunately, the anti-progressive ideology of corporations is once again at work in our courts to further weaken and destroy the hard-fought laws that protect the rights of labor.
In 2014, the 5–4 Harris v. Quinn Supreme Court decision gave Illinois home-care workers the right to opt out of paying union dues despite the fact that once they had become unionized their wages had nearly doubled. The conservative majority in the court overturned the 40-year labor law precedent of fair share/agency fee obligations for so-called nontraditional workers.
This decision gave impetus to the Friedrichs case that this year threatened the economic well-being of public employee union workers nationwide. Only the death of Justice Antonin Scalia saved unions from a crippling blow when the 4–4 vote sent the case back to the lower court. But there are, by one count, about two dozen more such cases in the legal pipelines wending their way up to that now evenly divided court.
Think of the Supreme Court appointments the next president will have to make as you contemplate the November general election. The present stalemate in the Senate over President Obama’s court appointment is no accident. There is a lot at stake including the very lifeblood of union survival and of voting access.
In Vergara v. California, a case initiated by anti-union education reformers, a Los Angeles Superior Court ruled that laws protecting teacher tenure and seniority in layoffs do not violate students’ rights to an equal education. That April ruling, which overturned a lower court ruling, has already spawned a case that is moving forward in New York.
An April 14 article in The New York Times, headlined “Job Tenure for Teachers Again Faces a Challenge,” reported on a recent case encouraged by these ongoing assaults on labor law and the rights of union members. The sub headline: “Wealthy Foundations Back Minnesota Lawsuit.”
Fill in conflicting arguments yourself, but the article noted, “Tenure … is one of the bedrock job protections for public school teachers in the United States.”
If you think they’re out to get us, you’re right.
The worst part of these ongoing attacks is that, even when the anti-labor ideologues don’t succeed, they still force unions to tap into their treasury and resources to fight off those with unlimited money.
The 5–4 Citizens United (conservative nonprofit organization) decision by the Supreme Court in 2010 gave corporations and billionaires the unfettered right to spend as much as they want to influence the political process and to up the ante on union busting. And we have seen how that is reshaping American politics.
But all is not bleak. The courts also have upheld the Affordable Care Act (Obamacare) and shot down voter limitations in Texas. And a Wisconsin state court declared unconstitutional a law denying unions fair share practices.
The Wisconsin unions took a page from the Brandeis playbook and turned a favored corporate concept — theft of property — against them. Unions maintained that not being compensated for services provided is theft of property. And on those grounds, the court ruled in the union’s favor.
Louis Brandeis would be proud.