The Supreme Court has proved, once again, eager to do corporations’ bidding by attacking workers’ rights this month.
Acting at the request of an influential corporate lobbying group, the Supreme Court ordered a lower court on October 17 to revisit a labor dispute that had previously been settled in the workers’ favor.
In an unsigned opinion, justices said the Ninth Circuit Court of Appeals must throw out an earlier ruling in favor of workers attempting to sue their boss, the pizza delivery giant Domino’s. The U.S. Chamber of Commerce had called on the Supreme Court to make the decision in an amicus, or “friend of the court” briefing.
Amicus briefings are filed in cases by outside parties with an interest in the outcome, and are used by lobbying groups and trade associations seeking to influence the judiciary. The filing by the Chamber of Commerce was the only amicus brief filed in the Domino’s case.
The litigation, Domino’s Pizza, LLC. v. Carmona, involves a dispute over mandatory arbitration clauses in employment agreements, which deprive workers of the right to sue their bosses for alleged labor law violations. The Ninth Circuit ruled in favor of the Domino’s workers in December 2021, months before an opinion on mandatory arbitration was issued in June 2022 by the Supreme Court, in Southwest Airlines v. Saxon.
In the Saxon decision, justices narrowed an interstate commerce exemption to the federal law on arbitration, which had maintained some workers’ access to courts and prevented them from being forced into private arbitration panels. Justices ruled unanimously that the exemption should only pertain to Southwest workers who “physically load and unload cargo on and off airplanes on a frequent basis,” and not all workers for the commercial airliner, despite the interstate nature of its business.
In its decision favoring the Domino’s workers, the Ninth Circuit said that drivers who complete the last leg of a delivery can qualify as being “engaged in interstate commerce,” as per the language of the exemption, even if they never cross state lines for work. But the Supreme Court held in Saxon that the lead plaintiff in the case could only seek to redress her grievances in class action litigation “based on what she frequently does at Southwest … and not on what Southwest does generally.”
The plaintiffs suing Domino’s accuse the company of stealing their wages, failing to reimburse them for expenses and other labor code violations, according to their lawyers. If they are compelled to settle their dispute in private arbitration, the workers are less likely to win their case. Numerous studies show that workers “win less often and receive much lower damages” in mandatory arbitration than in court, according to the Economic Policy Institute (EPI).
One study found “employees in mandatory arbitration winning only just about a fifth of the time (21.4 percent), which is 59 percent as often as in the federal courts and only 38 percent as often as in state courts … with the median or typical award in mandatory arbitration being only 21 percent of the median award in the federal courts and 43 percent of the median award in the state courts,” according to EPI.
A legal expert who spoke to Truthout said the Domino’s drivers might win again when the Ninth Circuit rehears their case, but criticized the Supreme Court’s decision to narrow the interstate commerce exemption in Saxon and said that federal judges are increasingly allowing “employers like Domino’s to force arbitration agreements on their workers as a means of escaping liability for illegal behavior.”
“It also highlights the success that the U.S. Chamber of Commerce and similar groups have had in influencing which cases the Court reviews and how it resolves those cases,” said Brian Frazelle, senior appellate counsel of the Constitutional Accountability Center. Frazelle pointed out that in recent years, the Supreme Court has “overwhelmingly” decided to review cases won by workers or consumers to overturn those victories, but rarely considers overturning legal battles won by corporate interests.
The Chamber of Commerce has been engaged in a concerted effort to intervene in court cases for decades. In 1971, conservative lawyer Lewis Powell urged the Chamber to step up its influence-peddling efforts months before President Richard Nixon nominated him to serve on the Supreme Court. The influential call to action, which is now known as the Powell Memo, prodded the Chamber into becoming the heavy-hitting lobbying group that it is today. The Chamber has spent almost $1.8 billion on lobbying since 1998, outspending the second-top lobbying group in that time frame, the National Association of Realtors, by over $1 billion, according to OpenSecrets. Last year alone, the Chamber spent $66 million on lobbying.
In his memo, Powell highlighted the importance of the court system, saying that it “may be the most important instrument for social, economic and political change.” He also implored the Chamber “to appear as counsel amicus in the Supreme Court.”
“The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort,” Powell said. In 1977, the Chamber established the U.S. Chamber Litigation Center (CLC) to carry out its judicial crusade with the help of well-connected legal minds. Today, five of the CLC’s 11 in-house litigators clerked for conservative Supreme Court Justices.
The Chamber’s legal arm has been increasingly active and successful in its amicus filings over the years. According to a study by R. Betsy Emmert published in October 2018 in the University of Cincinnati Law Review, the Supreme Court sided with Chamber “friend of the court” briefings 43 percent of the time from 1981 to 1986, while Warren Burger was still chief justice. During William Rehnquist’s tenure as chief justice, from 1994 to 2005, the Chamber’s success rate increased to 56 percent. And in the first eight years after John Roberts became chief justice, from 2005 to 2013, the Chamber’s win rate increased to 69 percent.
The Chamber’s winning percentage has only increased since then. During the later years of the Obama administration, the CLC ratcheted up its efforts to weigh in on cases. Reuters reported that the litigation team increased its annual amicus output by 50 percent in 2014 alone, with a focus on “briefs that help enforce pro-business Supreme Court decisions in the lower courts,” like their intervention in Domino’s Pizza, LLC. v. Carmona. The Constitutional Accountability Center found that the Chamber won 83 percent of the cases in which it filed amicus briefs during the 2021 Supreme Court term.
Reuters’s report on the Chamber’s efforts to step up its amicus filings noted that “no other national advocacy organization has so embraced the trend” toward Supreme Court advocacy. According to U.S. Sen. Sheldon Whitehouse (D-Rhode Island), the Chamber filed 100 more Supreme Court amicus briefs than any other organization between 2005 and 2016.
Senator Whitehouse has cosponsored legislation with Rep. Hank Johnson (D-Georgia) that would strengthen “friend of the court” disclosure rules to shine light on conflicts of interest currently masked by the federal court ethics regime. In October 2021, the Chamber publicly criticized the legislation, accusing it of chilling free speech. Whitehouse and Johnson replied by saying that the group is “Exhibit A for why robust changes are needed to make existing rules effective and fair.” Part of their bill would force member-funded organizations like the Chamber to disclose certain members with a conflict of interest when intervening in cases.
Although Chamber amicus briefs are increasingly ending up on the winning side of legal cases, Emmert warned against concluding that the filings are having a direct effect on outcomes. She said that influence “cannot be confirmed or denied” and that the success rate increase could be explained by the judiciary becoming increasingly right-wing over the years.
“While the Chamber has, and continues to position itself as a ‘friend of the Court,’ it is possible that the reverse is true — rather, that the Roberts Court is a ‘friend of the Chamber,’” Emmert noted. She also pointed out that it’s rare for Supreme Court opinions to cite amicus briefings, though a Chamber brief was cited in one of the most controversial opinions in recent times, the majority opinion in Citizens United v. Federal Election Commission, which in 2010, allowed unlimited spending on political campaigns.
Either way, ties between wealthy right-wing capitalists and the judiciary cannot be understated. If they were immaterial, the Chamber would not be such a prolific filer of amicus briefings, and it would not have joined the dark money lobbying groups who spent tens of millions of dollars lobbying the Senate to confirm President Trump’s Supreme Court nominees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The idea that amicus briefings are inconsequential is also challenged by the private communications of right-wing operatives who seek to mold the judiciary. Leaked documents from 2015 show that a grant officer for the Bradley Foundation, an influential public policy organization funded by wealthy conservatives, praised the impact of intervening in legal battles.“At this highest of legal levels, it is often very important to orchestrate high-caliber amicus efforts that showcase respected high-profile parties who are represented by the very best lawyers with strong ties to the Court,” the grant officer said. Another leaked email from 2014 shows a representative of the Bradley Foundation inquiring about “a 501(c)(3) nonprofit to which Bradley could direct any support of the two Supreme Court amicus projects other than Donors Trust.” By then, Donors Trust had a reputation for being a vehicle for political donations from wealthy conservatives seeking to conceal their identity.
Whatever the effect of “friends of the court” briefings, it’s clear that the Roberts Court pays special attention to the interests of wealthy capitalists, with two-thirds of justices appointed by Republicans, and the body’s labor organizers, environmentalists and advocates for reproductive freedom.
The results of a Gallup poll published in late September show record levels of disapproval of the Supreme Court, with a majority calling the body “too conservative” for the first time in the survey’s history. Justices siding against workers and with a powerful corporate lobby, which was the only outside party to weigh in on a case, will do nothing to dispel that notion.