The Supreme Court Is Demolishing Decades of Precedent on Workers’ Rights

The U.S. Supreme Court (SCOTUS) ended its 2023-2024 term with a flurry of massive decisions, and several stand to damage the agencies designed to protect workers.

The right-wing rulings are understandably causing anxiety among progressives, including labor activists.

“While the court is decidedly pro-corporate, most Americans probably don’t know just how anti-worker and anti-union it really is,” wrote Century Foundation senior fellow Steven Greenhouse in The Guardian last month. “The justices have often shown a stunning callousness toward workers, and that means a callousness toward average Americans.”

Starbucks v. McKinney

In the Supreme Court’s June 13 decision in Starbucks Corp. v. McKinney, the justices threw out a lower court’s approval of a National Labor Relations Board (NLRB) injunction instructing the company to rehire seven fired workers at a Memphis, Tennessee, store. Starbucks said it fired the “Memphis 7” because they invited a camera crew into a closed store. The workers say they were terminated because of their unionization efforts.

The NLRB issued a complaint over the firings, asserting that Starbucks “engaged in concerted activities” to discourage union organizing. NLRB attorneys also asked a federal judge for an injunction to reinstate the workers.

“Working people have so few tools to protect and defend themselves when their employers break the law,” said Starbucks Workers United President Lynne Fox in response to the SCOTUS judgment. “That makes today’s ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court.”

Despite the setback, Fox underscored that the decision would not stop the organizing efforts of Starbucks workers, who had established almost 450 union Starbucks stores and filed an additional 20 petitions to join Starbucks Workers United just a week before the ruling.

The Starbucks Corp. v. McKinney decision didn’t fall along the same ideological lines as other recent SCOTUS decisions. Eight justices backed the majority opinion. Justice Ketanji Brown Jackson wrote a separate opinion that dissented on certain details but agreed with the court’s overall judgment.

However, the case did highlight an important aspect of contemporary labor fights: a reinvigorated NLRB committed to protecting workers’ rights.

Biden’s NLRB

The NLRB, which was created during the 1930s under the Roosevelt administration, is a five-person board responsible for interpreting and enforcing labor law in the United States. The agency devolved into something of a joke under the Bush administration and contained only two members for almost three years, until 2010.

Under Barack Obama, the agency began to turn around. Not only were the three remaining seats filled out, but the board began showing a willingness to adapt to the shifting nature of the economy. It issued important decisions on the organizing rights of graduate students, rights of employees at charter schools, and helped chip away at the legal barrier between corporations and their franchises in 2015’s Browning-Ferris ruling.

The Trump administration’s NLRB predictably sided with corporations over workers and made it easier for employers to bust unions, but Joe Biden’s appointees have swung the board back in the opposite direction.

On his first day in office, President Biden canned Trump-appointed General Counsel Peter Robb, a pro-business attorney who helped Ronald Reagan bust the Professional Air Traffic Controllers Organization. He replaced Robb with Jennifer Abruzzo, former special counsel for the Communications Workers of America. Under Abruzzo, the NLRB aggressively enforced the National Labor Relations Act, leading to moves like the aforementioned Starbucks complaint.

Chevron Reversal

The reinvigorated NLRB might prove to be a short-lived development, however, thanks to the Supreme Court’s recent rulings on Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. By a vote of 6-3, the court overturned the 1984 Chevron v. Natural Resources Defense Council decision, which established the “Chevron Doctrine.” As a result of that doctrine, the court was compelled to uphold federal agencies’ interpretations of statutes as long as they were reasonable.

Ironically, the original Chevron decision sprung from the Reagan administration’s push to gut the Clean Air Act, but it eventually became a target of conservatives looking to weaken the power of government agencies and expand the influence of the courts.

Since Chevron was an environmental case, much of the criticism has understandably centered on the prospect of Republicans further rolling back regulations, but the ruling is also a massive blow against workers. The decision opens the door for federal courts to overturn NLRB rulings, which means workers can expect more legal challenges from the business world. The same goes for other federal agencies that make decisions that impact the workforce, including the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA).

“This ruling will make it harder for federal agencies to govern, operate, or enforce workers’ rights and protections effectively, meaning workers will be left exposed to more dangers, risks, and discriminatory treatment on the job,” said Economic Policy Institute’s Director of Policy Celine McNicholas in a statement. “Regulations are critical tools for establishing worker protections and it is simply common sense that agencies that Congress authorizes to administer and enforce laws should have the ability to establish the rules that most effectively effectuate those laws.”

Under Biden, federal agencies have issued blockbuster rules on issues like union elections, worker classification, protections for pregnant workers and overtime pay. Every such move is currently being contested via lawsuit.

Corporate attorneys are already expressing optimism over the expected changes.

“Removing the thumb from the scale would leave reviewing courts with more traditional tools of statutory interpretation, which is precisely why labor law might experience massive change,” wrote a group of attorneys for Morgan Lewis, the anti-labor law firm that represents Amazon.

“The NLRB, EEOC, DOL, and OSHA already face challenges to major rules,” reads an analysis of the decisions from Littler Mendelson, the firm working on Starbucks’s massive union-busting campaign. “Those rules could prove harder to defend under the Court’s recent decisions. And in the long term, these agencies will have to rethink their policymaking strategy.”

SEC v. Jarkesy

SCOTUS’s decision on SEC v. Jarkesy is another ruling that could end up having an impact on the NLRB. This case, which was initiated by hedge fund manager George Jarkesy, challenged the Securities and Exchange Commission’s (SEC) practice of using administrative law judges to decide legal disputes.

Billionaires like Elon Musk and Mark Cuban signed onto a court brief that urged the court to rule against the SEC, arguing that the agency has too much power.

By a count of 6-3, the Supreme Court ruled that defendants are entitled to a jury trial, rather than having an administrative law judge decide the dispute. In her dissent, Justice Sonia Sotomayor warned that the court’s decision would bring about “chaos” and called it a “power grab.”

The language of this opinion is limiting, so it’s unclear whether it would directly impact an agency like the NLRB, but it could raise future questions about the constitutionality of the board’s actions as administrative law judges for the SEC and NLRB have the same authority.

Vox senior correspondent Ian Millhiser writes that, “a wide array of laws guaranteeing workplace safety and advancing other important federal goals could cease to function after Jarkesy.”

Heat Regulations

We might see an early indicator of where things are headed in the Biden administration’s recent heat regulations for workers.

The administration just established the first ever federal workplace standard to protect workers from extreme heat. An average of 34 workers die of extreme heat every year, a number that is certain to grow larger as a result of climate change. The historic move is expected to reduce the chances of illness and death for more than 36 million people.

Corporate lobbyists have been trying to thwart this effort for decades and the Chevron ruling gives them further ammo. As former federal safety official Jordan Barab wrote on his blog, the court could simply rule that OSHA has no authority to issue a heat standard or rewrite the new rules on subjective grounds. “The bottom line is that we’re dealing with rogue MAGA courts that seem to have no respect for precedent or workers’ rights,” writes Barab. “And until we have further clarification from the courts when cases are challenged, we won’t know for sure what will be happening.”

Trump’s Return?

It’s not surprising that a conservative Supreme Court partially selected by the Trump administration has issued a series of decisions that serve the interests of big business. However, the war on workers will inevitably be expanded if Donald Trump returns to the White House and we see these federal agencies further targeted by the right.

According to a paper published in 2022, this is the most pro-corporate Supreme Court that we’ve seen in a century. Businesses have prevailed over 63 percent of the time when their cases are heard under Chief Justice John Roberts.

Regardless of who wins in November, the court has already ensured that workers will have their work cut out for them in the coming years.