The Roberts Court: a new Gilded Age and a return to the long-discredited Lochner Era

Jedediah Purdy, professor of law at Duke, recently wrote at the New York Times, The Roberts Court Protects the Powerful for a New Gilded Age:

Faith in courts runs deep in the American liberal imagination. Remembering Brown v. Board of Education, Roe v. Wade and the recent marriage-equality decisions, we keep hoping that wise and fair-minded judges will protect the vulnerable and lead the country toward justice.

Recent decisions upholding President Trump’s travel ban and Texas’ racially skewed voting districts are body blows to this optimism. They are unhappy reminders that for much of American history, the Supreme Court has been a deeply conservative institution, preserving racial hierarchy and the prerogatives of employers.

When it comes to economic inequality, today’s Supreme Court is not only failing to help but is also aggressively making itself part of the problem in a time when inequality and insecurity are damaging the country and endangering our democracy.

Under Chief Justice John Roberts, the court has consistently issued bold, partisan decisions that have been terrible for working people. Janus v. American Federation of State, County and Municipal Employees, was one of them.

Just hours after that decision, Justice Anthony Kennedy announced his retirement. With this “swing” vote gone, Chief Justice Roberts is now likely to take even more control over the direction of issues related to economic inequality — a direction that is earning him a legacy as chief justice of bosses, not workers.

In Janus, the Supreme Court ruled that public-sector unions may not charge nonmembers “agency fees” for contract negotiation and other services that affect all employees in the same workplace, members and nonmembers alike. In his opinion for the court, Justice Samuel Alito compared the fees to Orwellian ideological browbeating. Invoking the great First Amendment tradition invalidating loyalty oaths and mandatory pledges of allegiance, he warned, “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning.”

It’s the kind of knotty technical issue — one type of fee for nonmembers of one variety of union — that makes law boring. Unlike the Masterpiece Cakeshop case the court decided in June, Janus isn’t an obvious morality tale: Even many liberals often have mixed feelings about the public-sector unions that represent bureaucrats, subway employees, police officers and teachers.

But Janus is big. As Justice Elena Kagan explained in her dissent, allowing employees to opt out of paying union fees while getting the benefits of representation risks starving the unions of resources, leading to ineffectiveness and collapse. Moreover, knifing unions at a time of intense controversy over state austerity budgets and widespread teachers’ strikes suggests, as Justice Kagan wrote, that the court “wanted to pick the winning side” in these fights by “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Some on the right, like columnist George Will, have argued for a return to the long-discredited Lochner Era (1897-1937) of the Supreme Court, which followed the Gilded Age (1870s-1901). George Will’s radical ‘litmus test’ for a return to the Lochner era (snippet):

The Lochner era is a period in American legal history in which the Supreme Court of the United States made it a common practice “to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies,” by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights.

Janus fits a pattern. In May, the court ruled in Epic Systems v. Lewis that employees claiming wage theft — their employers trimmed paychecks by undercounting hours — could be forced to bring their complaints individually to private arbitrators hired by their employers, rather than bring a class action in court. Justice Neil Gorsuch reasoned that the court was simply enforcing the agreements that the employees freely made. [Echoes of Lochner.] The “agreements” consisted of the employers emailing their workers to notify them that if they kept working there, they would be deemed to have accepted mandatory arbitration agreements.

In 2012, in its first ruling on the Affordable Care Act, the court hamstrung Congress’s expansion of Medicaid eligibility from the very poor to the working poor by effectively making expanded coverage optional for states. About 2.2 million people are uninsured as a result, nearly 90 percent of them in Southern states whose economies have always relied on low-cost labor. About half of those left out of the Medicaid expansion are black or Hispanic.

These cases are part of a longer historical arc: the dismantling of the legal legacy of the New Deal and the creation of law for a new Gilded Age. A hundred years ago, the last time economic inequality was as stark as it is today, the Supreme Court struck down minimum-wage laws and other workplace protections. Justices insisted those laws violated workers’ free agreements to work for less money and less security — like the agreements in Epic Systems to take wage-theft complaints to a private arbitrator. The court struck down a national ban on child labor, claiming the Constitution left states free to set their own policies — as in the Medicaid expansion a century later. The defense of child labor came out of the South, which was then building its economic advantage on cheap and vulnerable labor.

Note: These are Lochner Era decisions.

The New Deal shook American law. Its triumph brought new attention to economic power. Antitrust law worked to cut back corporate concentration and control. Labor unions were essential to what the Progressive-Era jurist Louis Brandeis called “industrial democracy” — democracy adapted to a complex modern economy.

Congress could set national standards for the workplace and the social safety net. These were closely linked, because everyone understood that workers who lose health care, housing or even food if they lose their jobs are much more vulnerable than those with basic entitlements. Citizenship itself was threatened if companies could dominate their workers. Justice Felix Frankfurter captured this vision in 1961, when he wrote of a union dispute, “The notion that economic and political concerns are separable is pre-Victorian.”

Some people still imagine “workers” as white men, but the American working classes are increasingly female, immigrant and nonwhite. There’s no separating these hierarchies.

The 1970s brought a swing back toward inequality. The court stopped the advance of the civil-rights revolution at the borders of poverty. It ruled that there was no constitutional right to welfare or other social support and that public-school funding schemes that kept schools poor in poor neighborhoods and rich in rich ones did not discriminate unconstitutionally against poor people. Amid a constitutional revolution of legal equality, the court gave its blessing to the oldest form of inequality, between haves and have-nots.

The 1970s court also returned to its old habit of dressing economic power in constitutional principle. The dominance of the very rich in American politics is often attributed to the Citizens United decision of 2010, but that case only amplified a 1976 opinion, Buckley v. Valeo, in which the court shredded post-Watergate campaign-finance regulation and announced that private individuals could spend unlimited sums on candidates (including themselves). When the Roberts court used the First Amendment to protect corporate (and union) political spending in Citizens United, it was extending a longer-running trend. This is part of what Justice Kagan means when she observes that the conservative majority is weaponizing the First Amendment.

These cases have the potential to make economic and political inequality significantly worse. Take the mandatory arbitration cases. In 1992, as the Supreme Court began to allow arbitration to enter employment relationships, only 2 percent of non-unionized companies imposed arbitration on their workers. Today the figure is 54 percent and sure to grow because it conveniently ties the hands of disgruntled or mistreated workers. These cases have replaced a majority of employees’ legal protections with a system of private agreements that replicates the unequal bargaining power of workers and companies. Arbitration agreements will become only more important as “gig” employers such as Uber devise their contracts to get around labor law.

Janus, too, is part of an epochal shift in economic power. In 2017, 6.5 percent of the private-sector work force was unionized, compared with nearly as much as 34 percent of workers overall in 1954. In 2017, though, almost 35 percent of public-sector workers were union members. The collapse in private-sector unions has contributed to decades of stagnant wages amid rising profits.

And as the court used to recognize explicitly, there is no keeping economic power separate from political power. The remaining (disproportionately public-sector) unions are bastions of support for Democrats. The partisan overtones of suits seeking to weaken union influence are uncomfortably overt: The court was asked, in effect, to shift the rules in favor of Republican constituencies, and the votes fell out along squarely partisan lines.

It is especially damaging for the court to rule with such unmistakable partisan implications when many still hope to see it stand as a forum of principle against the Trump administration’s self-dealing, attacks on immigrants and other vulnerable groups, and general disregard for the procedural regularity that is the day-to-day life of the rule of law.

But the challenge is deeper than partisanship. Democracy treats people as equals. An economy that makes them increasingly unequal undermines it.

Justice Frankfurter was right. Economic and political matters are inseparable, and the law decides how they are stitched together. The Supreme Court can defend bosses’ bargaining power, the political spending power of the very wealthy and the prerogative of states to deny health care to their low-wage workers — or it can curb these powers to support a modern safety net. It can tilt organized labor closer to a death spiral, as it did with Janus; but with different justices, it might recognize the importance of unions to postindustrial democracy, as previous courts did.

These are choices. A different law of economic power is possible. In a time of significant economic inequality, we need campaign-finance laws that limit the influence of wealth and treat citizens as equals. We need a labor law that helps workers organize in new kinds of workplaces, such as home health care and the gig economy. We need antitrust law that can wrestle with the new quasi-monopoly power of platform-based companies such as Amazon and Facebook. We need forms of social caretaking and security that are even stronger and more universal than Obamacare.

These aren’t tasks for the Supreme Court. They are jobs for better legislators and presidents — and for scholars, unions and mobilized citizens. What is at stake is whether American democracy can overcome the new Gilded Age of inequality and insecurity. The justices, meanwhile, are part of the problem: In Janus and other rulings, they have retrenched on the side of private power and budgetary austerity. A different law of economic power will have to wait for a different court, and that will come only through winning elections. Those victories get more uphill every year, thanks in no small part to the current Roberts court.

Something else you need to consider with today’s announcement of Trump’s nomination for an associate justice to the Supreme Court who will have lifetime tenure. A conservative majority could unwind the advances of the 20th Century and take us back to the late 19th Century Lochner Era. Because absolute power corrupts absolutely.

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