Wayne O'Leary

Supreme Injustice

Working Americans received an inkling this spring of what life will be like under the new, conservative US Supreme Court. The longtime bad boys of the federal judiciary, Justices Antonin Scalia and Clarence Thomas, reinforced by recent Bush appointees John Roberts and Samuel Alito, are about to stamp their right-wing brand indelibly on the high court. A key roadblock was removed by the departure of Sandra Day O'Connor, the occasionally liberal "swing" vote, now replaced as the Court's linchpin by the more conservative Anthony Kennedy.

The handwriting has really been on the wall since the confirmation of Roberts and Alito in 2005, the former by an overwhelming 78-22 Senate vote in which hapless Democrats convinced themselves that the likeable new chief justice would be a nonideological moderate. They were wrong; he's Robert Bork with an engaging manner.

The initial year of the Roberts Court (2006) was a feel-out period without major drama, but 2007 revealed the true colors of a Court majority that's bent on writing its political biases into law for a generation. First came the 5-4 ruling in April upholding the 2003 Partial Birth Abortion Ban Act, which chips away at legalized abortion; it did not make abortions illegal, but it did herald coming restrictions. The disquieting decision previewed the new Court majority: the four rightist ideologues (Scalia, Thomas, Roberts, and Alito) plus the pragmatic conservative, Kennedy.

The abortion case has become a cause célèbre to the "choice" community. Of more import to America's already-struggling working class, however, were three subsequent decisions in May and June that hit hard at labor rights and affected the vast majority who toil for wages. In Ledbetter v. Goodyear, another 5-4 ruling, the Roberts Court negated the monetary award a lower court had given to Lilly Ledbetter, an Alabama employee of Goodyear Tire and Rubber Company, on the grounds of pay discrimination. Ledbetter had claimed that two decades of lower pay than fellow male employees had deprived her of thousands of dollars in lost income. In an opinion written by Judge Alito, the high court rejected the claim on the technicality that it had not been filed soon enough -- the Civil Rights Act of 1964 provides a 180-day window for complaints -- and was therefore invalid.

The Ledbetter suit, justifiable from a moral standpoint, was dismissed on a narrowly strict reading of the law that prompted a stinging rebuke of her colleagues by liberal Justice Ruth Bader Ginsburg. Complainants must now sue early on, Ginsburg pointed out, before they are even sure they are being discriminated against. The decision from which Ginsburg dissented overrode a broader 2002 interpretation of the law by the pre-Roberts Court that had permitted redress of past pay discrimination caused by a continuing "hostile work environment." In ignoring precedent, the Roberts Court chose to observe the letter rather than the spirit of the law -- to the delight of employers.

A second blow to American workers was the decision in Home Ltd. v. Coke, a suit based on the refusal of Long Island Care at Home, a New York nursing facility, to provide overtime pay and a minimum wage to its home healthcare workers. The legal action, brought by a 73-year-old employee named Evelyn Coke, sought reparations for 20 years of undercompensation; it was supported by the Service Employees International Union (SEIU), AARP and the American Civil Liberties Union, among other organizations. The long list of legal endorsements, however, carried no weight with the Court. It rejected the suit by a 9-0 vote, arguing that home-care workers are "companions" who, despite being employed by third-party healthcare agencies, fall under the Fair Labor Standards Act's babysitting and companionship exemption from federal wage laws (enacted in 1974).

The exemption, arbitrarily applied to health-care outreach services by a nefarious Labor Department regulation promulgated during the anti-labor Nixon-Ford regime, means that over one million workers engaged in the difficult care of the home-bound elderly cannot now receive just compensation. The Court's opinion, buttressed this time by the liberal minority, persisted once more in allowing a narrow and dubious construction of the law to overpower common-sense and simple justice. It illustrates the green-eyeshade mentality quickly becoming a hallmark of the Roberts Court.

Evidently seeking a trifecta of sorts, the justices proceeded to nail labor to the cross a third time by way of a followup ruling in the case of Davenport v. Washington Education Assoc., an NEA affiliate. In an opinion written by Justice Scalia, the court held unanimously -- its "liberal" members are hardly left wing when it comes to labor law -- that Washington state's teachers union had to obtain the permission of non-member teachers (who by law pay the equivalent of union dues) before using their fees for political activities. In the specific case of Washington, the state has revised its statutes to allow legal circumvention of the ruling. Nevertheless, the judgment applies broadly to all public employees who opt not to join a union that represents them in contract negotiations with state and local governments, and it represents a defeat nationally for the NEA and other public-employee unions.

Once again, the Davenport case is an instance where the Roberts Court overturned precedent to undermine the welfare of labor. The 1961 Machinists v. Street case had established that non-union workers should not get a "free ride" when benefitting from union bargaining activities and that their dissent from union actions on their behalf must be made known to the union and not simply presumed. The high court's decision to reverse that earlier determination is in marked contrast to the latitude consistently allowed to corporations, which need no prior assent from their work forces when collecting and bundling "voluntary" political contributions for favored (mostly Republican) candidates. White-collar employees are never forced to contribute, of course, but the boss always knows who's been naughty and who's been nice. And corporations, interestingly, outspend organized labor in political campaigns by about 12 to 1.

As Thomas Jefferson advised in his first presidential inaugural, a good and wise government is one that "shall not take from the mouth of labor the bread it has earned." That's a Jefferson unknown to Roberts, Alito, Scalia, and company. For the sake of the country's domestic tranquility, if not for the sake of social justice, they had better make his acquaintance soon.

Wayne O'Leary lives in Orono, Maine.

From The Progressive Populist, August 15, 2007

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