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June 05, 2023
Strict Scrutiny
"Not That Bad" is Still Bad!

In This Episode

Melissa, Leah, and Kate talk to Jenny Hunter, a labor lawyer and union consultant, about the recent SCOTUS opinion in Glacier Northwest v. Teamsters which has implications for union labor laws and the right to strike. They also discuss Justice Alito’s ignoring the Court’s newly self-imposed sort-of-not-really enforced ethics rules, and a PBS Frontline documentary about Clarence and Ginni Thomas (that even Kate couldn’t turn off).

  • Sign up to see the Strict Scrutiny live show in Washington, DC on June 9th!
  • Listen to these past episodes about Glacier Northwest v. Teamsters.
  • Here is where you can find out more about Eyvin Hernandez, an LA County Public Defender who is being held in Venezuala after being detained while on vacation in Colombia last year.
  • Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.




Melissa Murray [AD]


Show Intro Mister Chief Justice, may it please the court. It’s an old joke. but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. The band is back together and this week, on Friday, June 9th, we will all be in Washington, D.C. for our live show at Howard University Law School. You can still register to join us by searching Eventbrite for Strict Scrutiny or by going to go dot crooked dot com forward slash strict live.


Leah Litman And if you’re not able to be there in person, you can sign up to watch the live stream live at strict hyphen scrutiny dot K I S W E dot com. That’s strict hyphen scrutiny dot k i s w e dot com.


Melissa Murray And that’s all. A very long winded way of saying we’re your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman. And we got some opinions this week. None of the highest profile cases, but some incredibly important ones in particular. We got the opinion in Glacier Northwest versus Teamsters, the important labor law case about the future of the right to strike. We did a deep dive when we previewed this case with Manny Pastreich, the president of 32BJ., and we also went over it in detail when we recap the argument and we’ll spend most of our recapping time on that case today. So let’s get to it. With us to help us break down this case today is Jenny Hunter. Jenny is a labor lawyer and writer who works as a consultant to unions and nonprofit organizations. And she’s written about workers rights, judicial nominations and the courts for Slate and Balls and Strikes. Welcome to the show, Jenny.


Jenny Hunter Hi. Thanks very much for having me.


Kate Shaw So before we bring you in, Jenny, let’s just do some table setting to remind listeners of what this case was about. In general, it’s about when unions can be sued for damage that occurs during or as a result of a strike. We will go over the facts as they are alleged in the complaint, the opinion. She was very closely to the allegations in the complaint and then remind our listeners of what the general legal regime in this area is. Okay. First the facts. So the case involves a strike by unionized employees of a concrete company as alleged in the complaint. The union initiated a strike and didn’t tell the employer when they would be striking. They also and again, this is what the employer alleges in the complaint, decided to strike as a glacier. The employer was mixing a lot of concrete loading and onto trucks. And when the drivers were out with the concrete filled trucks making deliveries.


Leah Litman So Glacier says that it asked the employees to keep working. That is not to strike and specifically to continue making deliveries. But the union did not support the employer’s demand, so drivers returned with fully loaded trucks, which they say they left running in order to minimize damage to the concrete. But half of the trucks were abandoned without notifying the employer. Glacier says, And Glacier says they therefore had to take some emergency maneuvers to avoid damage to the concrete, like building special bunkers to offload it onto. Although some of the concrete hardened and became unusable, the trucks were apparently fine. Then the employer sued the union for the damage that resulted. Jenny, anything to add here kind of on that basic facts of the strike itself. We’ll get to the NLRB complaint and the posture of the case in a bit. But is that kind of the picture?


Jenny Hunter Yeah, that’s that’s the basic picture. I mean, there are differences about what actually happened. And as you said, all of the these facts are from what the employer alleged in its complaint. So they don’t necessarily match the actual facts, but that’s what it says.


Melissa Murray So taking it for what it’s worth and recognizing that the complaint alleges only the employer’s view of things, we should also think about how the law in this area is supposed to work. The National Labor Relations Act, or the Wagner Act, protects the right to strike. But the right to strike that’s protected in the act doesn’t encompass some kinds of property damage. So, for example, vandalism or violence isn’t covered and employees can’t strike by, say, lighting all of the employer’s warehouses on fire and then screaming. We’re striking like that. That’s not copacetic under the act. But the right to strike does encompass and envision that perhaps some kinds of property damage might occur when employees stop work. So, for example, where they work with perishable items, to stop work necessarily means that some of those items might go bad. Or perhaps if you are in an industry that relies on customers, reviews or preferences, the stoppage of work might invariably lead to poor reviews and things like that, and that might be considered permissible property damage under the act.


Kate Shaw So there are two questions in this case. One is a substantive question about the right to strike and what Melissa was just talking about. So namely, whether the damage that resulted to glacier’s property was part of the legally protected right to strike or not. So that’s kind of a substantive question. The other is more of a who decides questions. So who gets to decide whether the employees here were lawfully exercising their right to strike? Should it be the courts or should it instead be the agency overseeing federal labor law? The National Labor Relations Board, long standing president has said it is for the NLRB to decide when union activity is protected. But of course, not so fast.


Melissa Murray All right. Let’s focus first on that first question. What is encompassed or protected under the right to strike? And that’s arguably the easier question to understand and to encompass within the stakes of this case. As we noted in our preview episode on Glacier Northwest, this case is about the future of the right to strike and again, some property damage like to an employer’s property, but also to their products, is often inevitably part of striking and forcing unions to be liable for that damage. What is imposing financial penalties on unions for striking dramatically alters the power balance between the unions and their employers and basically eviscerates the whole point of having a strike in the first place. And so it reduces the effectiveness of strikes by forcing unions to mitigate the damages that might happen to employers.


Leah Litman And these concerns surfaced during the oral argument when Justice Kagan noted that a part of the striking process is that unions may try to conduct a strike in ways that would not be convenient to the employer were it otherwise. You know, that would lessen the power of the right to strike and lessen the power of the strike as a tool in labor relations.


Melissa Murray Wait, wait, wait. Leah, was Justice Kagan saying that we should make it convenient for the employer when we strike. Was that the point?


Leah Litman Um. I think.


Melissa Murray Let’s hear from her.


Clip What I hear you saying is that the focus on intent is wrong because workers unions do things all the time intentionally to maximize economic harm. You know that if there is a seasonal component of a business, workers will try to time their strike in order to maximize the economic harm because, you know, more of the business is conducted in the summer than in the winter and things like that, that there are all kinds of things which are perfectly intentional to maximize economic harm. And so you’re saying that when we start focusing on intent without more it it it pulls in pretty much, you know, every strategic decision that a union makes as to when to conduct a work stoppage.


Melissa Murray So, again, this case has the potential to be an existential threat to labor by curbing the right to strike, because as Justice Kagan is essentially saying in that clip, the whole point of a strike is not to make it more convenient or easy for the employer. It’s actually to make it more difficult. So they’ll come to the bargaining table and work with the workers to come to a fair resolution.


Kate Shaw And just to reiterate, and this is a little complicated, but it is going to matter. That, again, is the substantive question. And then there is that second institutional question about who decides whether the union was lawfully exercising the right to strike. The NLRB is the agency tasked with implementing the federal labor law that, among other things, specifically protects the right to strike. And under a doctrine known as Garman preemption that is named for the 1959 Supreme Court case, of which the doctrine arises. The court had previously held that employers cannot maintain a tall suit based on conduct that is protected by the NLRA, specifically workers engaging in concerted activities. Those suits are preempted. They cannot go forward in the courts.


Leah Litman But there’s also a second category of lawsuit, and that is suits for conduct that is arguably protected by the NLRA. And garment had also held that states can entertain claims for conduct. Arguably, protected garment is also supposed to at least temporarily, bar lawsuits involving arguably protected activity that isn’t plainly contrary to the National Labor Relations Act or hasn’t been authoritatively rejected by courts when interpreting the act. If the conduct is arguably protected, then the state court is supposed to wait for the NLRB to determine whether the conduct is in fact protected. And that’s what the Washington Supreme Court did here. They dismissed the case, saying, look, at a minimum, this conduct alleged is arguably protected. Therefore, the NLRB needs to decide whether the conduct is, in fact, protected. Okay. So that is this case and the procedural posture. Jenny, what did the U.S. Supreme Court do when all of these issues came before them?


Jenny Hunter Well, it will not be shocking to anyone to hear that the employer won and the workers lost. So that’s the basic upshot. The decision was at first very surprising when I looked at it yesterday, because it’s an 8 to 1 decision on its face, Justice Jackson is the only one who dissented. There’s a five justice majority opinion written by Justice Barrett and joined by like a surprising lineup of the Chief Justice Kavanaugh, Kagan and Sotomayor, which is a weird, odd couple situation. And the majority decision is, I would say not as bad as it could have been. Although, as I’d like to explain, I find that a very depressing thing to have to say all the time. So the majority opinion didn’t change the law in any of the kinds of ways that the employer and the third Chamber of Commerce and a bunch of right wing groups were asking it to. It didn’t overturn garment preemption, that 1959 decision. It didn’t change the standard for when a strike is arguably protected as a bunch of the parties are asking it to, instead of just apply the existing law to these very specific facts, which is a pretty weird thing. You know, they don’t usually take cases because they just want to learn more about how concrete drives and apply those facts to the existing law.


Leah Litman Honestly, like if all of the justices wanted to do was just watch concrete dry and write opinions about that. I’m not sure I would object.


Kate Shaw It’s a great use of their time.


Leah Litman Yeah, exactly. Like we need Brett Kavanaugh’s deep thoughts about hardening concrete.


Jenny Hunter So what Justice Barrett’s opinion said is, as alleged in the employer’s complaint, the union’s conduct was not even arguably protected, even though the National Labor Relations Act protects the right to strike because, as the employer alleged, they didn’t take reasonable precautions to avoid foreseeable aggravated and imminent harm to the employer’s property because they went on strike when they had already loaded the wet concrete into the trucks and the concrete could have hardened and could have damaged the trucks, even though it actually didn’t. The majority opinion didn’t address the significance of the fact that the National Labor Relations Board general counsel actually issued a complaint in this case against the employer, saying that the employer’s conduct in disciplining some of the truck drivers violated their rights and that NLRB process is ongoing. There was a hearing, I think, in January of this year. So it’s chugging along, finding actual facts, you know, applying it to the law that the NLRB has expertise in. And here’s the Supreme Court sort of applying the facts. As someone alleged them several years ago, and just kind of ignoring that other process, which is exactly the sort of thing that preemption is supposed to avoid.


Melissa Murray Wait, wait. Are you saying that this court completely overlooked a sort of ancillary process that might have been material to the disposition of this case?


Jenny Hunter Yeah. And was sort of disrespectful to an administrative agency.


Leah Litman This court?


Jenny Hunter Shockingly.


Leah Litman They’re usually so good about following rules and caring about process.


Kate Shaw And giving expert agencies the respect they deserve to adjudicate disputes. They really know something about.


Leah Litman Respecting workers and labor. I mean, this is this is shocking.


Melissa Murray Well, I should say, like I perhaps unlike any members of this court, have never spent a summer mixing concrete. I actually don’t know the process. But it occurs to me that if I really wanted to be effective and striking, I wouldn’t take precautions to minimize the damage to the concrete. Right. I mean, like, it’s not the whole point of a strike.


Jenny Hunter Yeah. I mean, and and the workers here really did take precautions, like the trucks were all returned to the employer’s yard. Most of the truck drivers who had still had concrete that hadn’t been delivered. I mean, notice by.


Melissa Murray If I were doing this, I would be a petty bitch and leave that truck like in Nebraska, like a hundred miles away.


Leah Litman You know, Sam Alito would do the same. Right. Like he would abandon it in the ocean and then tell The Wall Street Journal about it and how it was the employer’s fault.


Melissa Murray All right. So so they brought the trucks back. So that was one precaution. All right. So there’s wet concrete in it, but it’s in your yard. You could ostensibly do something with it, like put it in these bunker, which.


Jenny Hunter Is what they did. They add some kind of chemical that slows down the drain process. They built some like containers and they poured it into the containers so the trucks were fine.


Melissa Murray But they’re mad because the concrete harden because that’s what the fucking concrete does.


Jenny Hunter Yeah. So, I mean, it’s weird because I think the best reading of the decision is that it turns on the fact that there was this risk to the trucks as property, not just to the perishable product, but the actual damage was only to the perishable product. So, you know, I think it’s good that the court didn’t overturn the law, create some huge new standard or like blow a hole in the existing legal standard. But the way they applied the facts is definitely going to invite other courts to push the boundaries and apply this to other situations where the only damage is to like donuts or cheese or food in a restaurant, things like that.


Leah Litman So just picking up on that, there are aspects of the court’s reasoning that suggest maybe a motivated core, whether it’s the Supreme Court or lower courts, could apply this purportedly fact bound analysis to allow suits against other unions as well. So you already noted that the court emphasized that concrete is highly perishable. That’s one reason why the court said that the damage to the property was foreseeable. Another reason the court gave is because the union coordinated with truck drivers to initiate the strike when they were in the midst of producing this concrete and the fact that some of the drivers. Did not inform the employer that they were striking or that they would be depositing the fully loaded trucks where they did. And based on those facts, the court concludes the union executed the strike in a manner to compromise the safety of the trucks and destroy the concrete.


Kate Shaw So, Jenny, that kind of like leads to a question, which is how significant is the reasoning in the opinion? And those aspects that Leah just talked about? I mean, we will get to the fact that the concurring opinions in this case would have clearly gone a lot further. But as to the kind of narrow decision that Barrett offers, how easy do you think it’s going to be for employers in other cases to make similar allegations about other strikes? How might the reasoning in this opinion affect or maybe should it affect unions calculus about whether and how to strike going forward?


Jenny Hunter I mean, I don’t think this is going to put an end to strikes just to say that up front, like workers have to be brave already to strike. There’s so many risks that they’re taking. They could be permanent, really replaced. You know, there’s huge financial risks. There are lots of other ways that strikes can be found to be illegal. But I do think that this will have a chilling effect. I mean, unions have to think about the potential liability. So any time you have a strike that involves perishable products, I think they’re going to have to consider whether it’s risky. I would also say that a lot of the factors that Justice Barrett cited as being evidence that the union wasn’t taking care are just decisions that a union would reasonably make to make their strike stronger. Like if you start a strike at seven in the morning, it’s going to get a lot more attention from the employer and from the public than if you started it like at midnight, because you can’t have a bunch of workers walkout, or at least that could have been a consideration. It just wouldn’t get the employer’s attention as much. And in terms of notice, that’s one of the facts. I think that’s really misleading in this case. The back story was that the collective bargaining agreement between the union and the employer had just expired on July 31st of 2017, and the strike took place on August 11th. So the employer had notice as soon as the agreement expired and they hadn’t reached a new one, that the employees could strike pretty much at any time. And there’s there is a requirement under the National Labor Relations Act that health care workers give their employer notice before they strike, but only health care workers, not other workers.


Melissa Murray It almost sounds like you’re saying, Jenny, that Justice Barrett didn’t read the statute.


Jenny Hunter Well, I don’t know what she read or not.


Melissa Murray Maybe in not reading these aspects of the statute that make clear what the workers are permitted to do, including not providing notice, because that amplifies their position in the strike and gives them some power. She’s actually hobbled the Wagner Act in some way, or at least hobbled the protections that exist for workers.


Jenny Hunter Yeah, I don’t think it’s it’s not like the Wagner Act no longer exists, but this definitely is a chipping away at that really vital, important.


Melissa Murray It’s almost like the Wagner Act is the new VRA?


Jenny Hunter Oh my God, no. Well, they didn’t they didn’t take out any of the parts entirely. But I do think it’s an important point, Like if you try to imagine this decision flipped like the employer had locked out the employees, which is something an employer can legally do. And the employees sued and said, you locked us out without any notice at the end of the month when you knew that we would lose our health insurance and not be able to pay my rent. I got evicted and she had a bunch of health insurance. And that was not careful of you. And you need to pay us back for that. There’s it’s just inconceivable that a court would express sympathy with the workers.


Melissa Murray Certainly not this court.


Jenny Hunter No.


Melissa Murray Certainly not this court.


Jenny Hunter Not at all.


Melissa Murray [AD]


Leah Litman So I’ll come back to that in a bit. But I also wanted to note two additional limitations that the Barrett majority has on its reasoning that suggests some of the factors we identified, namely the failure to provide notice, as well as the fact that they were dealing with perishable products, might not be sufficient in other cases to allow lawsuits to proceed. So on the fact that concrete was perishable, you know, the court said it’s not just the fact that the workers were going on strike where there was a perishable product. It’s the fact that the workers reporting for duty at the outset prompted the creation of the perishable product that is the mixing of the concrete that partially made the damage to the employer’s product foreseeable. And that’s not necessarily going to be the case in other strikes where you’re dealing with, say, like food items and whatnot that might have been prepared and available in advance. So that’s one possible limitation. And the other is the court says the union’s decision to initiate the strike during the workday and failure to give glacier specific notice do not themselves render the conduct unprotected. So those two caveats, if taken seriously either by this court or other courts, would mean that the mere failure to provide notice, the mere launching a strike during the workday, the mere dealing with a perishable product should not by themselves be sufficient to make conduct arguably protected. And so even though this doesn’t make new law, and even though it does identify some factors and facts that, as you’ve suggested, Jenny, could lead a motivated court to allow lawsuits to proceed against other unions, there are these built in limitations that could limit the fallout from this opinion. And I agree, like we shouldn’t just be celebrating like it’s not so bad. But I do want to highlight the issues because they are there. And if courts take this opinion seriously, they need to give effect to those parts of it as well.


Jenny Hunter I certainly agree with that. And I assume that the inclusion of those kind of caveats and a limited nature of the decision is why Justices Kagan and Sotomayor decided to join this majority opinion to limit it and keep it cabin. So I hope that it works.


Melissa Murray Do you think it’ll work as well as it worked in Trinity Lutheran?


Jenny Hunter Right. I mean, it’s always the problem. You know, we’ve all we all went to law school and want to think the courts are logical and fair. And, you know, a lot of times they don’t apply the opinion in the way that they should. And so it can’t necessarily have faith that it will stay as limited as it is on the paper.


Melissa Murray So, Jenny, we’ve talked about the first question and the majority opinion, which may or may not be limited and the sort of weird liberal appeasement strategy that may or may not hold. Can we focus on the second question a little bit? And that second question is about who gets to decide whether this is a protected activity. And so here we have another pretty broad limiting principle in the opinion, which is that the court does not consider whether the NLRB’s issuance of a complaint against the employer, which amounts to an initial determination by the NLRB general counsel, that there’s reason to believe the employer engaged in illegal labor practices means that courts need to hit pause on this lawsuit and allow the NLRB to decide in the first instance whether the conduct is protected or not. So just to restate that here, the NLRB lawyer actually issued an unfair labor practices complaint against the employer. But because of the timing of that complaint, the lower courts didn’t address it and the court doesn’t address it either.


Leah Litman And it’s really this question, you know, the court’s choice to write an opinion saying we court don’t think the conduct is arguably protected, but maybe no court should decide this until the NLRB does. That really, I think, is the focus of Justice Jackson’s masterful dissent. You know, as Justice Jackson notes, the court’s reasoning doesn’t make a ton of sense when you line it up, because on one hand, they’re saying it may very well be that the NLRB is the entity better positioned to make the fact bound determination about whether the conduct here is protected, a determination that turns on how to read the NLRB is prior cases, but then the majority goes ahead and makes that determination anyways, but then goes on to add that maybe the court on remand should still let the agency decide the matter. Like if the NLRB complaint is a new and possibly material development that happened since the Washington Supreme Court’s decision, just vacate that decision and ask that state Supreme Court to decide whether the issuance of the complaint affects their decision, reasoning, etc. Like that’s the disposition.


Melissa Murray Because the court didn’t take that approach, as Leia suggested. Can the Washington Supreme Court still say that notwithstanding SCOTUS was view of the complaint and the NLRB, it’s actually for the NLRB to decide whether the conduct is protected arguably or actually.


Jenny Hunter I think so. I mean, Justice Alito’s opinion concurring in the outcome basically threatens the Washington Supreme Court, that if they do that, that they the employers should run back to the Supreme Court and seek help because he really doesn’t want them to rule that just the issuance of a complaint by the NLRB general counsel means that the conduct was arguably protected. I think Justice Jackson’s dissent makes it very strong, and it’s just a very logical case. Like if the basically prosecutor who is in charge of enforcing this law thinks that the employer violated the law, then that’s enough reason to say for a court to say, well, at least arguably what the employees did is protected. I mean, I think if the Washington Supreme Court wants to head, it could say just the fact of the complaint would be enough for us to wait until the board’s process is over. But also, let’s just look at some of the facts that have been uncovered in that investigation and then also on the basis of those facts, we think that the employee’s conduct was protected and so will stand stand down for both reasons. That’s what I would hope they would do to sort of insulate the decision.


Kate Shaw Yeah, I think that’s a sort of very nice kind of outline of a path available to the Washington Supreme Court. And I think that notwithstanding the menace in the Alito opinion, that is, you know, the Washington Supreme Court should proceed as it thinks appropriate. And it does seem really obvious that it’s crazy to completely ignore the pendency of this complaint by the actual enforcer of these federal labor laws. And so I think that’s why even though, look, the case is brought by Jones Day, there is very much a read of this opinion that is moving the law toward where the employer and the lawyers are arguing the case. And the Chamber of Commerce on the side of the employer wanted the law to be, which is like we would always prefer to litigate in courts rather than an agency. And then this, that. And there’s a reading of the opinion that definitely moves the needle in that direction. And yet, because I think of all the caveats that we just discussed and because of the litigation steps that still remain, that is not the meeting on the ground that this opinion has to have. So I think that is really important. But just to remind listeners of exactly what the former Trump solicitor general no. Francisco, who was arguing for the employer in the case, really wanted he sort of laid his cards on the table. So let’s just play that clip here.


Clip You know, frankly, we’d prefer not to be before administrative agency, where the agency is the judge, jury and executioner. We prefer to be in a court system where we have a neutral judge and the potential for a jury.


Leah Litman And of course, like Jones, Day has a long history of anti-union litigation. They were the firm that litigated the pre Janus case that sought to overrule the fair share of fees among unions Friedrichs, and they do a fair amount of union busting work on top of that as well.


Kate Shaw Okay. So we have sort of danced around a few of these topics, but maybe let’s directly address a few things now. So, Jenny, you kind of alluded to your theory about this, but do you want to just spell out why you think Justice Sotomayor and Justice Kagan joined this majority opinion by Justice Barrett? It was definitely striking. It did, as Melissa just suggested, sort of call to mind previous efforts to kind of potentially, it seemed, blind to the force of majority opinions in cases like the First Amendment case, Trinity Lutheran. But spell out what you think drove Sotomayor and Kagan here in joining the majority opinion.


Jenny Hunter Yeah, I mean, I think that the court, like I said, didn’t decide to take this case because they just wanted to apply the facts to the existing law. There was somebody for somebody maybe who wanted to change the law. And so the fact that those two joined the majority makes you think and that it was a limited majority seemed to contain a lot of sort of compromises like this agreement not to address the significance of the NLRB general counsel complaint. It makes you think that they must have joined in order to give Justice Barrett a majority for this limited holding so that Justices Alito or Gorsuch or Thomas couldn’t get a majority for their opinions, which would have gone much further in upending the law.


Melissa Murray So wait, so you’re basically saying the TLDR is that this is a Neville Chamberlain, they’re basically abusing this majority.


Jenny Hunter I mean, it’s not like this is new information. It just I find it kind of gross to think that Justice Barrett and Kavanaugh and the chief Justice in that scenario are saying, like, we’re going to go over here with Sam unless you guys join this kind of limited but unpleasant opinion.


Leah Litman And so I wanted to pick up on that because it’s like, let’s imagine Sotomayor and Kagan didn’t actually join the Barrett opinion. And so what you had was a three, three, three split, right? Six justices essentially sending the case back to the Washington Supreme Court. Like in that universe, there really wouldn’t be a question that the Barrett three Justice plurality, assuming that the chief and Kavanaugh would join. That was the narrower and controlling opinion, given that Justice Thomas and Justice Gorsuch would have thrown out Garman preemption and Justice Alito would have adopted a novel limitation on it. Basically saying like where the subjective intent of these unions is to inflict some sort of harm, right? Then they’re not protected. And so then it’s like really like Barrett Kavanaugh and the chief only would have done this if they had gotten five. And if that’s what’s happening, that’s appalling. And if it’s not what’s happening, then I wonder why Justice Sotomayor and Justice Kagan would have joined the opinion, because the fact that it’s effectively eight one in the disposition has blunted and been used to blunt some of the criticism of the opinion. And so it’s just this weird calculus that, I don’t know we’re ever really going to get a window into. And then, sorry, I need to do another rant. About what? Okay, this. This. Like we’re here for you, okay? It could have been worse, and therefore, we should celebrate. It feels like coverage like that coupled with this is eight one, right? The liberals are going along with it coverage focusing on the fact that just like a lone solo dissent that I think contributes to the unjustified public approval of the court and also inattention to the court because it makes it seem like nothing important is going on. But also this feels to me like a case where, as you were saying, Jenny, like there were three justices, maybe four, who wanted to change the law so badly and they want to advance this anti-union, anti-worker, ideological agenda so badly, they took a case that’s obviously unsuited for their review. Right. There was an intervening development after the Washington Supreme Court opinion that has uncovered additional facts and made the Washington Supreme Court’s resolution possibly moot. And it’s just like the fact that there’s no split. There’s an intervening development here since the most recent decision. And because it’s so messy, they don’t ultimately do what they may have wanted to do. And now we’re giving them credit for that. Just seems to like totally miss the point. Like we are rewarding them for having lowered our expectations and for having taken this case in such an unprincipled, unwarranted circumstance that, like they they shouldn’t be rewarded for this. Well, but I mean, I think.


Melissa Murray Part of it, too, is that they’ve essentially normalized the whole prospect of taking these unfit vehicles that will advance the law in the direction that they’re hoping to go. I mean, three or three creative is a great example of this. I mean, it’s I mean, in a way, they’re almost anesthetizing us to.


Leah Litman This, like the affirmative action case is another example of that.


Melissa Murray Yeah. I mean, but like but why let undeveloped facts get in the way of hobbling a statute or changing an entire body of jurisprudence?


Leah Litman It frustrates me to no end because I completely agree. This opinion read for what it actually says is not actually changing the law. Yes, it has some nuggets that anti-union anti worker courts can seize on in order to allow some of these lawsuits to proceed further. And it is worse than the way things were before. But the fact that they created this mess is itself the problem. Right. And warrants are criticism and describing what is happening.


Jenny Hunter Yeah, I totally agree. I think having to say it’s not it could have been worse in so many cases. Just you know, it makes it seem like when you say this is bad, that you’re being hysterical or something like that. And even if it’s true in a lot of the cases, it’s because the court only takes cases that would allow it to decimate existing rights. So it’s like their choices are decimate the rights or just like knock a little piece off of the rights. So yeah, telling ourselves that it could have been worse really obscures how bad the decisions are. And as you were saying, it gets everybody the public used to a Supreme Court that only whittles away at their rights instead of enforcing the rights that Congress has granted us, whether we have granted ourselves through our elected officials.


Kate Shaw I think that reacting to a case like this is hard. I think that it is frustrating to hear some of the public reaction for all the reasons that we addressed identified. On the other hand, when you are postured within labor, it is actually, I think, also important to say like we still are going to strike like we need to find the things we can work with, with them as opinion and tell lower courts, state and federal that actually nothing fundamentally changes in the legal framework because of his opinion. And that is what this but what you were doing, Leah, is zooming out and thinking about the Supreme Court institutionally. And I think for all those larger reasons, it’s really important not to suggest everything is fine because it is not. And yet we are in this moment of really unprecedented in recent years, worker mobilization, strikes like that’s happening and that’s not going to stop happening. And it is important, I think, that people don’t allow this opinion to temper that. I think like very powerful movement that we are seeing like obviously Writers Guild and a lot of service worker organization. And there’s you know, there’s just like a lot of important organizing happening. And this opinion should not stop any of that. So there are crosscurrents, obviously.


Melissa Murray But what we can do both, like you can chew gum and walk at the same time. You can be clear eyed about what the opinion does and doesn’t do, and you can also hold them accountable for taking bullshit. Is that really only serve their interests?


Kate Shaw Absolutely. But in terms of what is not complicated, I think, is how great KBJ’s lone dissent in this case is.


Melissa Murray Let’s talk about her.


Kate Shaw Let’s do it.


Okay. Let’s talk about. So this KBJ dissent is a tour de force, a banger in the style of the now departed Tina Turner. Well, I’m like, we had to get a Tina Turner reference in here, and that’s how I’m doing it.


Leah Litman Simply the best.


Melissa Murray Better than all the rest. Better than anyone. Anyone I ever met. Exactly. So in addition to focusing on the courts odd disposition of this case, this is also really powerful because it is a full throated defense of the right to strike and the entire regime of government preemption and its protection for workers. So we wanted to read a few of the fantastic And again, that choice is deliberate, fantastic, not fantastical passages that Justice Jackson laid down in this amazing desk track. So here are a couple. Workers are not indentured servants. I think she could have just stopped their life. Workers are not indentured servants, bound to continuing laboring until any planned work stoppage would be as painless as possible for their master. Say that they are employees whose collective and peaceful decision to withhold their labor is protected by the NLRB, even if economic injury results. Put that on a T-shirt. I will wear it like putting on a shirt. Instead of modestly standing down, the majority eagerly inserts itself into this conflict, proceeding to opine on the propriety of the union’s strike activity based on the facts alleged and the employer state court complaint as part of this mistaken expedition. The majority tries its own hand at applying the board’s decision to a relatively novel scenario that poses difficult line drawing questions, fact sensitive issues that Congress plainly intended for the board to address after an investigation. And in the course of inappropriately weighing in on the merits of those questions at this stage. The majority also misapplied the board’s cases in a manner that threatens to both impede the board’s uniform development of labor law and erode the right to strike. End quote. You stupid jerks.


Leah Litman Right. Like that just copied Alito.


Melissa Murray I’m sorry. We’ve needed a black woman on this court for a while. I’m here for all this energy.


Kate Shaw It’s an amazing dissent.


Melissa Murray She’s like stop playing in my face. Yeah.


Kate Shaw Excited about that. Whether she’s joined in them or not, I think she’s just going to pen some unbelievable and amazing dissent. And I feel like that is the one thing that we’re going to live for. This court’s sad.


Melissa Murray For Justice Sotomayor and Justice Kagan that they didn’t join us because.


Leah Litman I am.


Melissa Murray This would have been tour. I’m sorry. I feel bad for them. Yeah, you could have had a bad bitch.


Kate Shaw I suspect they will have other opportunities to join masterful KBJ dissents.


Melissa Murray Before maybe in two weeks.


Leah Litman Or one.


Kate Shaw Maybe in one. Jenny, before we let you go, any other concluding thoughts about the case?


Jenny Hunter The thing that was struck me that is not discussed in here at all is that labor law preemption is good and bad for employers and employees. A thing that’s not even discussed because it’s, again, sort of in a hypothetical alternate reality version of the court that this would be even considered, is that changing the standards for preemption should be able to help employees in some situations. You know, there’s lots of kinds of laws that unions would like to pass in states to help workers that are preempted under current doctrine. I think the court was somewhat aware of that, at least in all the ways that the amicus brief suggested that they change preemption doctrine. We’re careful to sort of make sure that it would only help employers and not employees. But that was just another background piece of information that showed how slanted and not sort of fair and evenhanded this decision was. Because logically speaking, if you were going to change preemption or even just interpret it differently, it could help employees and employers both.


Melissa Murray All right. Well, that is a great place to leave it. Jenny Hunter, thank you so much for joining us to breakdown Glacier Northwest. It’s pretty bad. It’s not as bad as it could be, but we should not let that get in the way of calling out the court for continuing to whittle away at labor rights as they have done over the course of the last ten years. Thank you for joining us to make that clear to everyone.


Jenny Hunter Thank you so much. It’s great to be with you.


Melissa Murray [AD]


Kate Shaw We got just two other opinions, which we will note briefly. The first was United States Israel should be versus SUPERVALU, in which the court revived a lawsuit against SUPERVALU alleging that the company overcharged the government for the price of drugs in violation of federal law. The suit was brought under the False Claims Act or the FCA, and the court held that in order for an FCA suit to proceed, plaintiffs have to show that the defendant made a knowingly false claim, and it’s enough to show the defendant actually believed the claim was false. It doesn’t matter if there was some hypothetical reasonable basis to believe the claim was true, but that the defendant didn’t hold. That’s because basically SUPERVALU had said, Look, we came up with this theory later about how what we did was lawful, and that theory is a reasonable theory. But the court says correctly, I think that doesn’t matter. You knew what you were doing was illegal and this was a unanimous opinion by Justice Thomas.


Leah Litman The other opinion we got was Slack Technology is versus pronto. Here, the court limited shareholders ability to sue over misleading statements that are issued by companies when they go public through a direct listing on the stock exchange. So the court’s unanimous opinion required plaintiffs in those cases to prove that they had purchased securities that are registered under a materially misleading statement. It’s a unanimous Gorsuch opinion, which means, you guessed it, it’s someone from Chicago. Just a little, though. Just a little, though, in snippets as he’s parsing through the evidence about what the statute means, he says beyond these clues lies still another like he’s writing some.


Melissa Murray Like Hobbit, like hobbit.


Leah Litman Low budget mystery novel. I don’t even know. And then, of course, it has some of his classic like I Burn for You textualism language quote. Our only function lies in discerning and applying the law as we find it.


Melissa Murray It sounded better when Regé-jean Page said it. Always. All right. So is it time? Is it time for it? Is it time for some court culture?


Kate Shaw Court culture. Its is


Melissa Murray I’m so excited.


Leah Litman Court Culture o clock.


Melissa Murray Court culture o’clock. Okay. Well, Sam Alito joined the chat to ethics us in the face on. That’s a good place reference if you missed it on the most recent orders list. The list of what cases the court has granted for review for next term, in which cases it decided not to extend the opportunity for review. We had Justice Alito choosing not to explain his recusal from a case. So he recused himself, but he never actually told us why. And this happened one week after Justice Kagan had explained her recusal on a previous orders list. So what’s going on here? Why is he being so cagey?


Kate Shaw This is Leah’s clairvoyance on display, right? So as Leah and Steve Mazie noted in the last episode, and sidebar, Steve was so great. Steve noted that Kagan had actually explained her decision to recuse in a case on last week’s orders list. And in doing so, she appeared to be following these new guidelines that the Chief Justice had kind of alluded to when he was exchanging letters, refusing to appear before the Senate, and the guidelines that he mentioned that, of course, are self-imposed and voluntary suggested that the justices might explain their recusal decisions. But, Leah, you reacted to Kagan’s explanation by saying, look, I’m going to defer any judgment until I see if anyone else does this, because to my mind, Kagan’s not really the problem or if this is kind of like a one off or maybe just the liberals do it. And lo and behold, it didn’t take a week for us to get the answer, which is that Alito basically gave the entire enterprise an enormous F.U. Because he refused. He didn’t say shit about why He’s basically announcing to all of us that no one can make him do anything.


Leah Litman And he’s like, middle finger, middle finger to all the haters.


Kate Shaw Like they just put an emoji, like a middle finger emoji on the orders list. Next to Alito did not take any part.


Melissa Murray What was what was the nature of the case, Do you remember?


Leah Litman So it’s a case that was obvious why he recused. It was like Philip, 66, and he owned stock or something.


Melissa Murray That’s what I wanted you to say.


Leah Litman But but like everybody knows this. And so the move not to even bother to explain your recusal, where it truly is insignificant is just the giant. I truly can’t be bothered with this ethics horseshit move. Like I think he wanted to give a middle finger to the chief justice who represented that the justices like would be abiding by these guidelines to Congress, who was insisting that the courts have to do something to the public, who is criticizing him and to like everyone. And he’s just like, No, I won’t do this. And it’s just.


Kate Shaw This is where the Senate has to stay on them. They need a letter.


Melissa Murray Stay on their necks, yeah.


Kate Shaw Saying why. Why do you refuse in this case? And why didn’t he explain why he recused in this case? Like, don’t let them get away with this?


Melissa Murray I mean, I actually don’t think it’s an insignificant thing for a justice to perhaps be invested in one of the largest oil and gas companies in the world at a time where the court is rendering all of these decisions that have such profound effects for climate change regulation. I mean, I mean he should note.


Leah Litman Alito’s opinion in Sackett was literally, to BP. With love from Sam.


Melissa Murray Again, I think they should stay on their necks about this. And we are you are totally right. Elena Kagan wasn’t the problem here. It’s me. Hi. I’m the problem. It’s Sam. Correct. Other news.


Leah Litman We wanted to congratulate Melissa on being admitted to the Supreme Court bar.


Melissa Murray It’s happening ya’ll.


Leah Litman It’s all happening, as she initially says, because this is bringing us one step closer to Melissa, appearing incognito in a trench coat and disguise, as she suggested in our mailbag episode at the Supreme Court Lectern. Oye! Oye! Oye!


Melissa Murray Master’s Tools. Master’s House. So separately and unrelated, but sort of related to the Supreme Court bar, not related to my admission, but friend of the pod, Judd with Judy Stone, who is the solicitor general of Texas. Is apparently taking a leave from his practice of saying bonkers things to the Supreme Court like the quote unquote, tort of outrage or these were quote unquote, normative descriptions that. Your Honor. He’s going to stop that for just a little bit in order to say some bonkers things to the Texas legislature. And by that, I mean Judge Judy Stone has decided to take a leave of absence, along with a few other officials, to defend Texas A.G. Ken Paxton from charges of impeachment. So last week, a Texas House committee voted to impeach Paxton, triggering his suspension from office. And there will be an impeachment trial in the Texas legislature, where Ken Paxton is going to be defended by, among others, Judge Tudor Stone. So as I said on Twitter, way to take a 2D stand for 2D democracy, Judd with two views on this is a great use of your time.


Leah Litman Well, on one hand, maybe it is right because it takes him away from his other pursuits, like saying you can sue anyone who provides an abortion for the tort of outrage. So this will take him away from that passion project. On the other hand, like the optics of AG Paxton, who is accused of using his office for personal gain like corrupt and corruption, like accusing the state appointed officials who were appointed by him, I think right to defend himself from.


Melissa Murray You’re taking a leave. So it’s now pro bono. It’s Texas pro bono hours. This is like hours.


Leah Litman I’m honestly surprised Jones Day hasn’t taken this on pro bono. Right. They would love this.


Melissa Murray Speaking of servants of the damned.


Leah Litman Right.


Melissa Murray If you if you haven’t read it, there’s a great book by David Enrich called Servants of the Damned. And it’s all about Jones Day and a couple of other law firms, but mostly Jones Day.


Leah Litman Yeah. But the optics of, again, him seemingly once again using official employees to defend himself from impeachment proceedings does seem to reinforce some of the narrative underlying the impeachment claims.


Kate Shaw It’s kind of amazing that the way the mechanism works in Texas is that you’re removed automatically upon the actual House impeachment. Imagine if the federal impeachment process works like that. But it sounds like he you know, the Senate is really different in its composition in Texas and how it’s like maybe he wins and who I mean, part of the, you know, improper use of office charges is like retaliation against employees. So if he’s restored to office, like, can you imagine if he essentially gets a clean bill of health after all of that? What he’s going to unleash in terms of corruption and sort of personnel behavior? No, we will see.


Leah Litman I cannot. So we got a super fascinating and important state court opinion, specifically Maryland Supreme Court opinion that I wanted to note. Barton versus Maryland. It took the important but rare as in I’m not sure I’ve ever seen it before. Step of disavowing some dicta that had been in an intermediate appellate courts opinion because that dicta traded in racist tropes and dehumanizing sarcasm. So the Maryland Supreme Court opinion noted that the appellate court opinion that it partially disavowed had drawn an analogy between a criminal defendant and Beowulf, effectively comparing criminal defendants to monsters, which the state Supreme Court notes is inappropriate and risks perpetuating racist stereotypes about black people. The defendant was black. In addition, the opinion that the state Supreme Court disavowed had also negatively compared the mother of the defendant, who was also convicted in the proceeding to Whistler’s Mother. Like just strange stuff that’s ostentatious and done to show off your like, cleverness as the. Maryland Supreme Court noted the bulk of the opinion approximately 40 pages is dicta. Like, Why are you doing this? Would that some Supreme Court justices and federal judges take note of what the Maryland Supreme Court has done and said here?


Kate Shaw All right. So while we’re in the court culture segment, I wanted to take a bead on the PBS Frontline documentary Clarence and Ginni Thomas Power, Politics and the Supreme Court. Have you guys seen it yet or still no?


Leah Litman Yes.


Melissa Murray Still haven’t seen it yet.


Kate Shaw Okay.


Melissa Murray I’m saving it.


Kate Shaw Spoiler spoiler. Thomas really needs therapy desperately.


Leah Litman That was my take home. My take home is he needs therapy and Ginni is insane.


Kate Shaw Okay, so.


Leah Litman That’s my bottom lines.


Kate Shaw Yeah. So you were not really spoiling anything, but it is really.


Melissa Murray Okay. I’m going to watch this this weekend.


Kate Shaw The illuminating documentary. There is a lot of trauma on display, like some of it is in Thomas’s memoir. Some of it is in the really excellent Thomas biography by Kevin Merida and Michael Fletcher. But some of what’s in the doc paints a really different picture of Thomas’s childhood from his memoir, in particular the depiction of his grandfather. There’s also a ton of new material, including from characters like Lillian McEwen, who is a longtime girlfriend of Justice Thomas’s, for he was a Judge or Justice, or Ian Douglas was a classmate who also went on to become a judge who is totally amazing, who also kind of talked about Thomas’s sort of early formation views on affirmative action, which, like we are probably 1 to 3 weeks out from all being ruled by. And so that origin story is fascinating. It’s just very, very well done. And you guys know me. I don’t watch much stuff, but I turned it on like a week or two ago and I could not turn it off. And there is also, if we want more Thomas content this is the summer of of the Thomas’s. There’s a new celebrity documentary.


Melissa Murray I just started listening to Slow Burn becoming Clarence Thomas this morning, and it’s amazing. It’s like really fantastic. The first episode details parts of his childhood and pinpoint Georgia, his canonization of his grandfather, who seems like a very hard and flinty man who was withholding in his love and his praise and may have like literally set this poor child up for a lifetime of similarly being withholding to other people, namely the American public and democracy more generally.


Leah Litman I mean, this is what I was saying. Like, I think like he does need a therapist and I truly mean like that. Not as a nag. I think most lawyers, basically every lawyer should have a therapist like that. That would be.


Melissa Murray Good. When I teach the affirmative action cases and my con law class, I always pair Grutter. I guess now Grutter is going to be over, but I don’t know what I’ll do next year. But I always paired Grutter with a chapter from Justice Thomas’s autobiography, My Grandfather’s Son, and a chapter from Justice Sotomayor’s autobiography, My Beloved World. And they’re fascinating because they tell the same story. They both talk about growing up in these sort of very segregated situations, like one sort of Puerto Rican enclave and, you know, Catholic school in the Bronx, the other pinpoint Georgia, Savannah Catholic Seminary in Georgia. And then they get integrated into these predominantly white institutions, Holy Cross, the seminary, Princeton. And it’s a culture shock. And they have difficulties. And, you know, they’re both, you know, pretty straightforward about affirmative action being part of the reason that got them there. But they come out in these entirely different ways and with different views of affirmative action. And when I asked my students what accounts for the differences, one of my students one year said, I think it was that Justice Sotomayor knew she was loved. And I was like, Oh my God.


Leah Litman That is savage.


Melissa Murray I was like, like, oh, my God. But also.


Kate Shaw That’s profound.


Melissa Murray Yeah, profound. Especially in light of what I heard on Slow Burn. So Slow Burn is fantastic. The new season looks like it’s going to be a banger. It’s hosted by Joel Anderson, off to a very strong start, highly recommended part of the Slate Network of podcasts. We really liked it a lot.


Kate Shaw So I’m excited to listen to that rest of the episodes, which I think are going to drop weekly in the next few weeks. And before we go, I wanted to take a moment to thank Cardozo Law student Abe Hoffman, who won a podcast shout out at the Springs Public Interest Auction. So he and some of his classmates bid on the shout out not just for the glory, but actually because they wanted to use the opportunity to bring awareness to some organizing that they were doing around Eyvin Hernandez, who is an L.A. County public defender who was vacationing in Colombia last year when he was detained at the Columbia Venezuela border and has since been detained in a Venezuelan prison. The group is trying to put pressure on elected officials, including the Biden administration, to secure Eyvin’s release. And if you want to find out more, you can visit bring Avon Holmes, Watts, bring e y v i n  home dot org. So, Abe, thanks for your advocacy on this issue.


Leah Litman Just a reminder about how our episodes will work over the next few weeks. We will continue to have our regular Monday episodes and there may also be occasional emergency episodes if and when we get, you know, some of these big opinions that we are waiting for. So stay tuned for those as well.


Melissa Murray That’s all we have for today. Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content hosts takeovers and other community events, including our live show on June 9th in Washington, DC. And if you are as opinionated as we are, consider dropping us a review. But remember, this is a perishable item. So if you post a bad review, we are going to sue you under the National Labor Relations Act. So just so you know. Great.


Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell, Ashley Mizuho is our associate producer. Audio Support from Kyle Seglin. Music by Eddie Cooper. Production Support from Michael Martinez and Ari Schwartz. And Digital Support Amelia Montooth.