The Long Game to Weaken Workers' Rights | Crooked Media
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January 09, 2023
Strict Scrutiny
The Long Game to Weaken Workers' Rights

In This Episode

Melissa, Kate, and Leah reconvene to preview the cases the Supreme Court will hear in its January sitting. Manny Pastreich, president of the Service Employees International Union (SEIU) local 32BJ, joins us to lay out the stakes in a pair of cases involving labor unions.





Leah Litman [AD] .


Show Intro Mr. 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 where your hosts. I’m Melissa Murray.


Leah Litman I’m Leah Littman.


Kate Shaw And I’m Kate Shaw and Happy New Year. Listeners, we are a little scared to ask what some of the justices New Year’s resolutions might be, but we’re sure to find out in due time what they have in store for us in 2023.


Leah Litman Neil Gorsuch’s is definitely destroying the administrative state and post-conviction review. I’m too scared to ask what Sam says. I am slightly curious about Amy’s resolution now that she joined the opinion overruling Roe. But again, we’ll find out.


Kate Shaw One theory about Amy, I think, is that she may be seeking to find a way to thread the needle of overruling Smith Right. Granting religious plaintiffs exemptions from basically any law they object to, but without disrespecting her former boss, Justice Scalia. The author of Smith seems like that might be on her list.


Melissa Murray And I imagine Justice Thomas, his resolution is to continue seeding theories that get dismissed by the commentariat as outlandish and off the wall and never, ever going to materialize. And then suddenly they appear in a lower court opinion and then suddenly they migrate to the Supreme Court and then suddenly they become the basis for the law. And he just sort of sits there stroking a hairless cat and just thinking about like how great this new Year has been for him.


Leah Litman This is sounding all too familiar.


Kate Shaw This is why Elena and Ketanji and Sonia are like, Get me to July A.S.A.P. And we feel them.


Melissa Murray Yeah, well, and the chief.


Kate Shaw What about the chief?


Melissa Murray So his resolution has got to be. How can he make the court look less crazy while still being completely crazy? It’s all about appearances. Let’s make the optics look good.


Kate Shaw So getting down to brass tacks, the court is back in session, so the justices have the opportunity to start to manifest all of this. Beginning with the January sitting, I mean, it’s actually a pretty light sitting. They are hearing a whopping seven cases, but that’s actually good news for a number of different reasons. It’s good news for us and for the country substantively, because it gives them fewer opportunities to take a wrecking ball to things, but also because it gives us more time to go in depth and also to bring in some terrific guests. So let’s get right to it.


Melissa Murray So the first week of the January sitting, the court will hear two huge labor cases. So we’re going to start with these two cases. And we thought this was the sort of thing where we really needed an assist, someone to step in who knows this terrain really well. So we have a fantastic guest today, someone who is here to help us understand how the Supreme Court is really the court of the working man. So we’re delighted to welcome to strict scrutiny newly elected president of the Service Employees International Union, SEIU Local 32. B.J. Manny Pastreich. Welcome, Manny.


Manny Pastreich Thank you. It’s great to be here.


Leah Litman So for those of you who might not be familiar, SEIU Local 32, B.J. is the largest union of service workers in the United States with more than 175,000 members. And Manny succeeds as president of 32. B.J., someone we’ve talked about previously on the show, Kyle Brag. Listeners, if that name sounds familiar, you probably recall us highlighting Kyle Bragg’s rejoinder to some of the statements made by Samuel Alito during the oral argument and last term Second Amendment decision NYSRPA versus Bruen. We’ll return to that later. When we asked Manny about his plans for clapping back at Justice Alito.


Kate Shaw But first, to focus on this term. During the January sitting, the court will hear two cases Glacier Northwest versus International Brotherhood of Teamsters and the Ohio adjutant generals Department versus the Federal Labor Relations Authority. Both of those cases feature critical questions involving organized labor and workers rights. So just to quickly summarize the two cases. Glacier Northwest is at a high level of generality, which we will dig into later about whether an employer can sue a union for property damages that the employer experienced during a labor strike. And the Ohio case is about whether the Federal Labor Relations Authority has the authority under the relevant statutes to regulate the labor practices of state militias.


Melissa Murray We’re going to focus more in this episode on Glacier Northwest, because I think it’s not really an exaggeration to say that this case really is about the future of labor strikes. But first, let’s spend some time unpacking the relationship between the courts, the law and organized labor. And so once we do, that will then turn to the cases. But I think this is really important landscaping, ground clearing that we have to do in order to really understand what’s at stake here. So, Leah, let’s talk a little bit about the broad landscape.


Leah Litman Okay. So maybe we can bring Manny in here. So over the holidays, New York Governor Kathy Hochul nominated someone, Judge LaSalle, to serve as the chief judge of the New York State Court of Appeals. And there was pretty swift opposition to that nomination from labor as well as other organizations. And in 32 page statement indicating their opposition, you said, quote, New York must be a bulwark against the Supreme Court’s attacks on our basic rights, not an extension of them when raising concerns about nominating an anti. Union, an anti worker judge to New York’s highest court. And I guess how worried are you and the union more generally about the United States Supreme Court’s anti-worker record and where it could go next?


Manny Pastreich Well, if you start on the federal level, we’re very worried. I mean, if you take a just the last few years, if you go from Janice, where the court took away the rights of states to make their own decisions about how workers are or aren’t in a union, how they’re represented and how they support having a union. If you look at Epic Systems where a group of workers who in the past they could get protections if they filed lawsuits together, they could get protections for doing concerted activity. That has been taken away. In Cedar Point Nursery, I got to spend time in the United Farm Workers for three years in 96 to 99. And I’ve always said organizing is hard, but organizing farm workers is really hard. And if you start taking away the even limited access that you have already, again, that’s a step backward. So Glacier would be a very, very big deal if you look across the spectrum of workers want to join the union. Polls show that 80% of workers want a union. So the question is, why don’t they get a union? And the reasons are it’s very, very hard to organize and then it’s hard to get a contract. And so every time there’s a decision, whether it’s an administration or the Supreme Court or the actions that companies themselves take, it’s a step backwards to what you know, Americans want and the ability for working people to get a fair shake. So, yeah, this is this court gives us great fear.


Leah Litman Yeah. I mean, it’s no secret that weakening unions has been a top priority of the Republican Party. And the Supreme Court has really been at the forefront of that agenda. You know, I’m glad you brought up the cases that you did, Epiq Systems versus Lewis, which help with the National Labor Relations Board, couldn’t prohibit employment agreements that barred collective action suits. That was the case where Justice Stephen Breyer said the court’s decision actually threatened the entire New Deal, like if there isn’t a mechanism for workers to recoup underpaid wages and get damages for wage theft, that was a serious threat to labor and workers rights. And maybe we can just play that clip here.


Clip At least to me and you can explain this. You started out saying this is an arbitration case. I don’t know that it is. I thought these contracts would private for profit would forbid joint action, which could be just two people joining a case in judicial as well as arbitration forums. Regardless, I’m worried about what you’re saying is overturning labor law that goes back for FDR, at least the entire part of the New Deal. What we have here is a statute, two of them, Norris LaGuardia, the NLRB, which for years have been interpreted the way Justice Kagan said. They say that they protect the joint joining together. Those are the words joining together. Those the words or interpretation of you could have to workers to seek to improve working conditions through resort to administrative and judicial forums. Okay. So Cardozo said we exclude cases from arbitrary. We exclude cases. That’s the savings clause where the contract is in contravention of a statute.


Leah Litman And there were just so many examples of that.


Kate Shaw And in addition to the cases, Manny mentioned. Janice, Cedar Point Nursery and that Leah mentioned Epic Systems versus Lewis. You really sort of see on display even in cases that don’t involve questions directly implicating labor and workers rights, this kind of anti-union bias sometimes revealed. Maybe. Let’s play a clip here that I think does just that, right. Sort of reflect some of these anti-union sentiments that justices have expressed in other cases. But in a case where that’s not actually really what’s at issue at all. So here I’m thinking of Justice Alito’s question from the dormant Commerce Clause case, National Pork Producers versus Ross. And that case involved California’s efforts to ban inhumanely raised pork products from being sold in California. So let’s see what Justice Alito’s mind went to during the oral argument.


Clip A state says we don’t want a particular product to come into our borders because we think it was produced in an immoral way. So so, Your Honor, perhaps why isn’t that apply equally to a law that says you can’t bring any products into our state if they were produced by employees who did not have the right to work, the right to not to join the union.


Kate Shaw This seems like a pretty important tale about how Justice Alito feels about the morality of right to work laws. And Lila mentioned a few minutes ago that undermining the power of unions has long been an important Republican Party priority. And we should say that it’s not a new development, right, like the federal Taft-Hartley Law, part of which actually gave rise to the state right to work laws that Alito’s question kind of lovingly invokes was one of the first pieces of legislation that the Republican Party passed in 1947 after they took control of Congress in the 46 midterm elections after FDR died and Truman ascended to the presidency. And, you know, so that’s before even the full kind of civil rights party realignment. But the GOP was already very much the anti-union party in 1947. So this is very long standing.


Melissa Murray And we can actually go even further back than the 1940 to find a long history of anti-labor, anti-worker sentiment in the courts. Some of this is associated, obviously, with the Lochner era, but I think it’s important to get a bigger sense of this history. And one of the most important, I think, labor historians, legal labor historians, is will be forbath of Texas, who estimated that by a conservative reckoning, at least 4300 anti strike injunctions were issued between 1880 and 1930. And according to Forbath, the courts enjoined about 25% of boycotts in the early 1900s and by the 1950s 46% of all boycotts and all of that information is taken from Willey’s article The Shaping of the American Labor Movement, which is in the Harvard Law Review. So, you know, again, there’s a lot of anti-worker anti-union sentiment during this period in the early part of the century. There’s also a history of criminal conspiracy and antitrust suits, not against big corporations, but against unions themselves. And again, Willy Forbath recounts a story about how then Judge William Howard Taft of the Circuit Court for Ohio, he would then go on to be president and then later chief justice of the United States Supreme Court. Taft summoned a union head to his courtroom in Ohio and said in the courtroom and on the record that if they engaged in a strike, it would, quote, make the whole Brotherhood a criminal conspiracy against the laws of their country and quote. And that, again, is from Willie for Barth’s article, The Shaping of the American Labor Movement. So this idea of the courts as hostile to labor organizing, this is not a new thing, but it has become, I think, increasingly virulent over the last couple of years.


Leah Litman And maybe it’s because of that history that it feels like organized labor was very all over, you know, the recent New York nomination. And I guess I want to return to your statement, Mandy announcing 32 bodies opposition to the nominee. I have a sense that there is a renewed focus among unions on state court nominees. Is that your sense, too?


Manny Pastreich Well, I can speak for ourselves when we look partly because of what’s going on in the federal level, both in the courts and, you know, the years of Trump and even some of the Democratic administrations, it’s very hard to get things done. So when we look at the ability of where we can make a difference for our members, whether it’s raising the minimum wage, whether it’s passing laws that protect people, when contractors flip, you can just go down a list of things. We often look to city and state legislation. Some of the most creative stuff we’ve done has been in New York City giving fast food workers we’re fighting for just cause. We’ve given just scheduling laws. These are all city and state things that we’ve done in New York and other states as well. And so once we start the action shifts to there, obviously the courts be on the state level. We come that much more important. So it is something I think that I know we’ve been paying more attention to. And when this nomination came up, it was something that we felt pretty strongly about. We are huge fan of the governor, but on this one, we just disagree. Judge LaSalle has shown through his decisions that, you know, he has some very clear anti-labor decisions, some along the lines of what he discussed on the federal level of holding individual labor union leaders personally responsible for things that she said in a labor dispute. I can speak personally that if I felt like everything I said on behalf of our members, I could be personally sued for libel. It would be a silencing effort for me that would be very difficult for me to do my job representing our members. You know, and then we also have other concerns about, you know, he basically allowed a anti abortion clinic to operate in a fraudulent manner. So, I mean, these things are of a concern to us specifically. But as you say, as the action often now is in the city, in the state, these things do take a bigger role and we’re paying more attention.


Leah Litman I’m so glad you made a plug for state courts because we have been pressing this issue and we want to remind our listeners that there is an upcoming important state court election for the Wisconsin Supreme Court that will be in April and will determine control of that court in a state where, you know, again, the importance of reproductive rights, voting rights, labor rights, workers rights, you know, are incredibly important and it could go either way. So thank you for the plug on city and state.


Melissa Murray We don’t want to get entirely off the rails with federal courts. I mean, there’s been a lot of really important changes in the composition of the federal courts with the Biden administration. But again, given the nature of Congress and the polarization of Congress, like seeing more pro labor or even judges with some kind of labor experience, that might be harder over the next couple of years of the Biden administration. So, again, really important to maintain the focus on state courts as well.


Manny Pastreich We’ve been pushing to nominate Nicole Berner on the Fourth Circuit Court. She would be one of the few actual people with direct labor experience that Biden would have nominated. And we think she’s incredibly talented. But, you know, we’ve seen to your point, I think if you compare the last couple of years, the previous four, it’s a huge, huge improvement over whether there’s no comparison really. But we think that even Biden can go further to make sure that working people’s voices are heard on the federal level.


Melissa Murray I think that’s right. Let’s get into Glacier Northwest. So, I mean, this is an actual labor case that the Supreme Court is going to take up. Manny, how big a deal is it? If employers could sue unions for property damage incurred during a labor dispute or a strike.


Manny Pastreich Again, if you try and take what is concerted activity, which is the heart of what we do and individualize it and personalize it, you’re basically make a commitment, I’m going to lose my job. I’m potentially going to lose my house, lose everything I own. That’s a very big decision and some people will make that decision. But it’s just moving down the spectrum of basically making it that much more difficult, putting that much more burden on those that are trying to make improvements, number one. And I guess I would also say is that it somewhat undermines the concept of collective bargaining. When you’re bargaining, it’s a tradeoff. Every three or four years, whatever the term of the contract is, you’re trading labor peace for that time period in exchange for hopefully a good raise, health insurance, whatever it is that you have the power to win. And then when that ends, it’s the threat of losing that labor peace. Again, you’re making a new tradeoff, labor peace for whatever you have the power to win. And if you sort of change that power dynamic and shift it and basically say you can do your labor unrest, but you’re going to get sued, you’re going to get personally sued, you know, it basically is changing the balance of power. So now I have less ability to make a fair trade, to get that raise, to win that health insurance, to protect the benefits that me or my family depend on. So it’s a very big deal. It would it would shift the balance of power towards employers in a major way. And again, that’s what a strike is. A strike fundamentally is withholding what you have as a worker, you’re not. And so if you try and take that away, what’s left? What’s left for me to trade?


Leah Litman Yeah, I’m glad you said that. It really stacks the deck, you know, on behalf of employers. I mean, you are forcing a union to pay for a strike, which means it’s no longer a strike or a negotiating tactic or a source of power for for workers. And like, the whole point of a strike is the idea that employees can impose costs on employers. And this case just threatens to invert that principle entirely.


Manny Pastreich Right. And ideas that we have when we bargain, you know, number of our agreements have as part of the tradeoff. Employers have said, I want 72 hours notice, you know, for the contract we may talk about in a few minutes, you know, for the cleaning agrees. Mentioned the dormant agreement here in New York City. We have a bargain into the agreement that will give a 72 hour notice before the strike. But again, that was part of the give and take of bargaining.


Melissa Murray There are a lot of parallels between Glacier Northwest and the theory underlying it, like parallels to previous anti-union, anti-worker decisions from this court. And it almost seems premised on the idea that workers labor isn’t actually their own, and instead it’s somehow owed to employers, or it’s simply just a form of capital that the employers control as opposed to, as you say, part of the chits that workers can withhold in order to extract more favorable working conditions for themselves. So, for example, an international Brotherhood of Teamsters Local 695 versus fucked from 1957, the court allowed a state court to enjoin peaceful labor picketing on the ground, that the purpose of the picket was coercive and therefore, contrary to public policy, again seems off in terms of the balance of power. And then, of course, there’s an even earlier decision invoking Eugene Debs. So in in Ray Debs from 1895, the court upheld the federal government’s ability to enjoying a railroad strike and to hold in contempt railroad striking organizers who refused to abide by an injunction. So again, there’s a long history of doing this, and this is sort of building on that history.


Leah Litman And I think it’s important to understand this most recent trend. You know, the court’s recent attacks on unions and workers in the context of the political economy of labor and unions. You know, we can take the results in the most recent midterm and in particular, look at Nevada, where Senator Cortez Masto, you know, the first Latino elected to the Senate, held on to her seat, helping to secure Democrats control of the Senate. And in Nevada, the Culinary Union said that its canvassers knocked on more than 1 million doors to help make that happen and had almost 200,000 conversations with voters. And, you know, we’ve talked about how you can link the courts suspension of the Voting Rights Act, Section two, and the independent state legislature theory and partizan gerrymandering with the idea that it helps facilitate Republicans political power and geography. But it’s important to situate these cases that really undermine unions and threaten their existence and power alongside these cases, too.


Melissa Murray It’s also worth noting here that labor has been a traditional building block of the Democratic Party. So part of the effort to hobble labor and to hobble unions has a very clear output, which is to hobble the growth of progressive majorities in the states and cities and at the federal level, too.


Leah Litman And no one no one has been more virulently antagonistic to unions than Sam Alito. You know, Kate, you mentioned his question from the oral argument this term in which his torture mine went to the idea that trying to legislate morality would involve a state refusing to buy goods made by unionized workers. Because I’m a glutton for punishment, I decided to go back and force myself to relive the oral arguments in a case called NOx. That was the case that kind of began the attacks on public sector unions that culminated in Janice. The court heard that case knocks when I was clerking. This is another nod to my villain origin story, my time at the court. Anyways, Knox involved the court reaching out to basically launch this attack on public sector unions in a case that was already moot. But let’s just play a few clips from some union labor cases that tell us where Sam Alito is. So here is a clip from Harris, which was the middle step between Knox and Janice, where Justice Alito invoked.


Melissa Murray Wait for it.


Leah Litman Justice Thurgood Marshall, in order to oppose fair share fees for public sector unions, an early manifestation of Toledo and how he was destined to use racial equity as a fig leaf for his agenda. So let’s play that clip here.


Clip Is it true? Yes. I’m not from the beginning, there have been members of this court who have questioned whether there is any principled basis for distinguishing between the chargeable and the non chargeable expenses, and also have questioned whether, as a practical matter, that can be done. Justice Marshall made that argument. And, you know, yes.


Melissa Murray So everybody knows that fair share fees are just racist.


Leah Litman Like this is this is where Sam Alito’s mind went. And then in Janice, Justice Alito likened the people opposing fair share fees to wait for it. Thomas Moore, who paid for his life for challenging the Crown’s views like you just cannot make this stuff up.


Clip Well, then why won’t you answer my question about what the assistant district attorney could be required to do? Throughout history, many people have drawn a line between a restriction on their speech and compelled speech. I’ll give you an example that’s only that’s quite different given the nature of the subject from what’s involved here. If you remember the movie in the play, A Man for All Seasons. So Thomas Moore didn’t insist on saying that he thought the act of supremacy was wrong, but he drew a line and paid for it with his life wit because he would not affirmatively say that it was wrong. When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not? When you restrict what the person says.


Leah Litman Again, like these are the people that Republicans are nominating to the federal courts who apparently think that, like these are equivalences in their minds.


Melissa Murray And despite his frequent maligning of unions. Justice Alito occasionally has had a warm spot for organized labor. And in fact, he attempted to pick up the banner of the working man, woman and non-binary laborer just last term in the oral arguments in Nice Cerpa versus Bruin. That was a major Second Amendment case. And Manny, we promised that we would come back to it. So so here we are. Last year during these oral arguments in I Cerpa versus Bruin, Justice Alito feigned concern for the quote unquote working people of New York who, according to him, were under siege in an unsafe city where they were forced to leave their jobs late at night, take the unsafe subways to the outer boroughs, and wanted nothing more than to exercise their Second Amendment rights to protect themselves on the subway. And he talked about this at length in his oral argument. It also came up in his concurrence in Bruin. But your predecessor, Kyle Bragg, issued the following statement, and I’m just going to read it in my best Kyle Bragg voice because I love it so much. Quote Justice Alito knows nothing about the lives of doormen and janitors in New York City or anything about the lives and struggles of our members. I condemn the self-serving use of our members to advance ignorant, uninformed and offensive stereotypes about New York City and the subway system. People like Justice Alito too often only care about the plight of our members when they can use them as props to undermine the interests of everyday people and push a backwards right wing agenda. Where was his concern for our members when he betrayed them with his vote in the Janis decision or the Epic security case or the Cedar Point Nursery ruling? Justice Alito should keep our name out of his mouth. End quote.


Leah Litman So I said I was going to ask I’m going to ask Manny, what is your plan for trolling Justice Alito harder than your predecessor?


Melissa Murray This is pretty hard. It’s pretty hard core.


Manny Pastreich To compete with Carl Bragg for saying the right thing at the right time because he was a master. But I will say this, that, you know, whether it’s a dog catcher or a Supreme Court justice, when they feign caring about working people, when they feign caring about doormen, cleaners, airport workers, food service workers, we will be in their face. We will fight back and we will make it clear that the issues they care about are not going to come from someone who’s using working people to make a point that really is not in the interest of working people. So we will carry on in the tradition of Kyl that I can promise in terms of trolling, being there and telling truth to power.


Melissa Murray We’re here for it.


Manny Pastreich Thank you.


Kate Shaw And we are really happy to help amplify that message. I mean, I’m so glad, Manny, that you mentioned the data on support for labor unions. If I’m not mistaken, the data suggests that we’re at the highest point in something like a half a century in terms of American support for unions, their desire to join unions. And yet you wouldn’t necessarily know that from a lot of the coverage of this. And so to the extent that we can sort of help amplify that, it’s really important. And the case is the court is hearing this month seem kind of technical and yet the on the ground implications, as I think you really clearly illustrated, are existential. So we want to stay focused on that, those questions of impact.


Manny Pastreich No, and we appreciate it. It makes such an important difference to these cases. It is an attack that most people don’t hear about, understand most Americans aren’t paying attention to. But the list of cases you all mentioned have had real impacts on the power of unions to make a difference in workers people’s lives. And that means how much wages people are paid, whether they have good health care or they don’t have health care, whether they can take care of their families. So as you said, this is an attack the Republicans are making to take away power from working people, from a constituency that wants to make change. And so we appreciate that you’re highlighting and it’s been a pleasure to be here.


Kate Shaw Well, Manny thank you for the work that you’re doing. And thank you so much for taking the time to join us today.


Manny Pastreich Thank you all for having me.


Leah Litman And thanks to Tyrone Stevens at 32, B.J., for helping to arrange this.


Kate Shaw We’ll be right back.


Leah Litman [AD]


Kate Shaw So let’s turn now to some quick previews of the cases the court will hear during this sitting. We’re going to start with Glacier Northwest, which we’re going to give a little bit more time to. As we just discussed, the general question in the case is whether employers can force unions to pay for costs incurred during a strike. And as many of 32, B.J. just made clear, that’s a question that has kind of existential implications for the future of organized labor. But to turn now to the specific legal question in the case. So the question is whether the National Labor Relations Act preempts a state tort claim against a union. Preemption just means that a federal statute prevents a state from enforcing some state law. In this case, a common law claim against a union for damages resulting from a strike. So in our system, federal law is supreme over state law when there is a conflict between federal and state law. And the question here is whether the rules the courts have devised for implementing that principle means that the state claim can go forward or is prevented by the federal law from proceeding. And actually, the question here isn’t just about what substantive law applies, but also which actors are the right ones for resolving this dispute. Because here there’s a federal agency, the National Labor Relations Board, which is the body responsible for administering federal labor law. And the argument is that the NLRB has to decide whether this claim can proceed before any state court does. And the state tort claim here is about damage to property specifically, but it’s kind of unclear what exactly could be counted as property if the court says the suit can proceed. Could it include, for example, lost revenue? Right. These are the kinds of questions that I think make the world of labor so nervous about the potential consequences of a ruling in this case.


Melissa Murray Which is really interesting, Kate, because remember, in those Bridgegate fraud cases, like the sort of concept of property was like very narrowly construed by the court, even as it was very widely considered by prosecutors. And so curious.


Leah Litman Yes, So curious.


Melissa Murray Hmm. This case also concerns a doctrine known as Garman preemption. It’s named after the 1959 decision of the same name in Garman. The court said that you can’t have tort suit based on conduct that was protected by the National Labor Relations Act specifically. Workers engaged in concerted activities. Garman also held that states can’t entertain claims for conduct that is arguably protected by the NLRB. That is, Garman is also supposed to at least temporarily, bar suits involving activity that could be covered by an interpretation of the NLRA that isn’t, quote, plainly contrary and quote to the act or hasn’t been authoritatively rejected by courts. If the conduct is arguably protected, the state court has to wait for the National Labor Relations Board to determine whether the conduct is in fact protected.


Leah Litman Now there is an exception to garment preemption. The court said there was an exception for state tort claims that are, quote, so deeply rooted in local feeling and responsibility. But that exception has never been applied to cases where union conduct is arguably protected by the NLRA. And here there’s just no question there is arguable protection. This case arises out of a strike of concrete workers. The state tort suit alleges that workers failed to take reasonable precautions by leaving concrete in the truck drums as they walked out. And they say that made the concrete harden and become unusable. But the reality is, like the workers left the trucks at the worksites. They also left the machines running. So the concrete didn’t immediately harden. And they you know, the employer nonetheless says, like, maybe you should have emptied the trucks or like, done all of these bajillion other things.


Melissa Murray Sounds like work.


Leah Litman In order.


Melissa Murray Right? Sounds like doing work.


Leah Litman Maybe you should.


Melissa Murray Maybe you should have poured the concrete and then left.


Leah Litman Maybe you just shouldn’t have engaged in a strike, Right? Did you ever think of that anyways?


Kate Shaw In the lower court proceedings, actually, the Washington State Supreme Court held that the suit couldn’t proceed. As of now, that is without a determination by the NLRB. That’s the federal agency, again, because this alleged conduct. Right. Walking out at a time when the trucks had concrete in them was arguably protected conduct. Now, as the litigation was playing out in the state court, the union filed a complaint with the NLRB alleging that their employer, that is Glazier, had engaged in a campaign to punish union members for protected conduct, which included filing this lawsuit. After the state Supreme Court decision, the NLRB issued a complaint, but deferred resolution of it. But there will actually be a hearing on that complaint in January of 2023. So this month. Now, the relevance of that complaint actually isn’t directly before the United States Supreme Court for complicated procedural reasons. The facts in that complaint are not so extensive with those alleged in the state court case that’s being reviewed here, the board complaint issued after the state Supreme Court decision. But it’s actually, you know, something to watch kind of what the court does with this. And that’s because the issuance of a complaint which did happen here has historically been treated as sufficient to show that conduct is arguably protected by the NLRA.


Leah Litman And I have to say, the employer’s brief in this case, I thought it was pretty bad. It basically read like unions bad. Everybody knows we have five votes for that proposition, at least five votes, QED. You know, the employer is arguing that unions are responsible for anything that’s, quote, intentional destruction of property or that there’s like some category of property damage for which they’re responsible. But intentional and intentionality is a pretty capacious standard. Like under tort principles, there isn’t like a separate category of just like intentional destruction to like chattels or like conversion. A lot of things are intentional when they result from an intentional act. So here the destruction of the concrete was intentional because workers intentionally walked away from the trucks when they had concrete in them. But by that logic, unions are responsible for everything, or at least a lot of the things that happen when they strike. And that seems to be the point. You know, the argument, as we were saying, also undermines the right to strike because the entire premise of a right to strike is the power to inflict costs on your employer. And yes, that is what this suit is challenging.


Melissa Murray Not to be outdone by that logic, the employer is also making a constitutional argument as a backstop. So the employer says that it would constitute wait for it a take it if they cannot sue the union for damage to property. And again, this argument would mean that Congress could not regulate the concerted activity or otherwise protect it because it involves property. So again, welcome to the Lochner era 1905 up in this piece. I love it.


Kate Shaw Except Lochner via the takings as opposed to the due process clause but otherwise.


Melissa Murray Same idea. Fifth Amendment. We can do it.


Kate Shaw Essentially indistinguishable.


Leah Litman When when Sam Alito gets so angry at whoever for accusing him of Lochner rising, he’s going to be like everybody knows Lochner was about the due process clause, whereas I’m relying on the takings clause. Totally different.


Kate Shaw Completely different.


Melissa Murray Very, very different.


Kate Shaw So in terms of other filings, in this case, the federal government filed a brief in support of neither party. It said, and I can’t kind of believe this needs to be said, but it did. The act generally does protect the right to strike, and thus unions cannot be sued for strikes.


Leah Litman Sam Alito is like, are you sure? Are you sure about that?


Kate Shaw Maybe it just shows sort of how far the conversation has dried that that needs to be reiterated. And yet at least it was. But the federal government also says that a union actually can be sued to the extent that they fail to take reasonable precautions to avoid foreseeable imminent damage to property. And they also said the relevance of this NLRB complaint that I was talking about a couple of minutes ago isn’t before the court in this case. So I don’t know if this is like an effort to avert disaster in this case by offering the justices some kind of an off ramp. It seems like maybe we will see whether it succeeds.


Leah Litman We all know these guys love an off ramp.


Melissa Murray That’s a joke.


Leah Litman Right?


Melissa Murray Okay. So the other labor case that the court will hear in the January sitting is Ohio Adjutant general’s Department versus Federal Labor Relations Authority. So this is about whether the LRA has authority to regulate state militias in addition to federal agency workplaces under the Civil Service Reform Act. So predictions here, the CERT grant seems to suggest that the court is going to say no, and that that would allow them to limit the force of the LRA to agencies and really stick it to workers. But maybe not. I don’t know. What do you think?


Leah Litman What’s not to like? They’re going to say the agency doesn’t have authority to regulate state militia. It’s just.


Kate Shaw The technicians who are like actually at issue in this case are these kind of dual function technicians. They are sort of private and they’re kind of hybrid employees. And so I think pretty clearly the court is going to say that Flora doesn’t apply to them. And I’m just not sure if that’s true about everybody in a state militia.


Melissa Murray Justice Thomas will be like, clearly they’re all guns. Do they have Scott okay, they’re fine. Let him do what they want.


Leah Litman Right? What they’re going to say is that the federal agency has the authority to require them all to possess guns, but nothing else.


Melissa Murray Like no other workplace protections. Just a gun.


Leah Litman Just a gun.


Kate Shaw That seems right. Yeah.


Leah Litman Okay. So next case the court is going to hear is in re grand jury. This is a really important case about the scope of attorney client privilege. The specific question is about hybrid or dual purpose communications involving both legal and non-legal advice. Whether those communications are protected by attorney client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication. So the courts of appeals are in disagreement about when these communications are protected. Most courts adopt a test that asks whether obtaining legal advice was the primary purpose behind the communications. That is a pretty narrow test. Only those communications where the purpose was to provide or obtain legal advice are protected. Others have. A test, including the D.C. Circuit, that asks whether a primary purpose was to obtain legal advice. That opinion from the D.C. Circuit was actually by then Judge Kavanaugh. And other courts have a per se test which holds that such communications are never privileged.


Melissa Murray So going into this argument, you really have to wonder, will the D.C. Circuit frat, alternately known as Delta Chi Chi, get behind the D.C. Circuit’s way of doing things here, or will they go their own way? I mean, this is going to be a kind of animal house sort of situation where they go broke, get cut off by nationals.


Kate Shaw And it’s going to be like I was never on that court. I’ve never heard of that place.


Melissa Murray I just don’t picture what’s up there with that. But I was really never part of it. I was just a legacy, like not really part of it.


Leah Litman I definitely see Brett Kavanaugh as Will Ferrell’s character from old school, though. I love you, Blue. We’re going drinking.


Melissa Murray Delta Chi Chi forever.


Leah Litman [AD]


Kate Shaw So next case we’re going to briefly preview is the Financial Oversight and Management Board for Puerto Rico versus Centro de Pedro, this investigative arm. So this is a case about whether Puerto Rico residents can sue the Financial Oversight and Management Board for Puerto Rico. And the legal questions at issue in the case, which is just the court’s latest encounter with the PROMESA statute, is whether that statute abrogates Puerto Rico’s sovereign immunity. Now, this case is interesting because it turns in part on Puerto Rico’s unique status within the United States as a territory, and it involves the question of how that status might affect Puerto Rico’s sovereign immunity. Right. It’s immunity from suit.


Melissa Murray So the federal government and states enjoy sovereign immunity so they can’t be sued without their consent. And you might think, well, maybe it’s better not to exacerbate Puerto Rico’s territorial status and deny Puerto Rico sovereign immunity or the same presumptions to sovereign immunity that states in the federal government enjoy. On the other hand, the result, in effect, of sovereign immunity is to create this entity that is entirely unaccountable to the people of Puerto Rico, which may be, I think, additionally dangerous when the entity is itself created by an institution where Puerto Ricans are not represented, namely Congress. I can think of a very quick fix for all of this, which is that Puerto Rico could just become a state and get some representation in Congress, but obviously not on the table. Before the court.


Leah Litman Concluding this act eliminates Puerto Rico. Sovereign immunity might require the court to distinguish its awful sovereign immunity cases, which make it hard for Congress to alter sovereign immunity. And they might, you know, in distinguishing those cases, have to invoke Puerto Rico’s territorial status. And that doesn’t seem great to the extent you want to see the court cabin. The insular cases, which denied constitutional rights to residents of Puerto Rico on the basis of Puerto Rico’s territorial status. And as we’ve talked about before, you know, those cases were really kind of steeped in xenophobia and racism. But there is an alternative ground for distinguishing the court sovereign immunity cases, which is proposed by an amicus brief by Public Citizen. And there the amicus brief suggests that Puerto Rico is the entity with sovereign immunity and Puerto Rico’s constitution and laws disclaim sovereign immunity. And the Congress can’t confer immunity against those laws without being super clear.


Melissa Murray Where do you think textualist Neil Gorsuch comes out on this? I mean, in an interesting way, this is a lot like some of those federal Indian law cases where they’re.


Leah Litman Yes, definitely. Yeah. Well, and he, in a previous cases, has indicated some interest in overruling the insular cases and revisiting them. And so it’s possible you can imagine one reason why he is skeptical of those cases is that they are hostile to the idea of sovereignty and, you know, self-determination. And, you know, maybe he would find that proposed out in the amicus brief, you know, a better way to distinguish this. But we’ll see.


Melissa Murray All right. I think that’s probably enough to get people ready for this super short January sittings. So maybe we can switch gears and talk a little bit about court culture, because a lot has happened since 2023 has dawned. So it is a new year, which means it’s time for our first hot Jenny Toddy or Ginny Tonic, if that’s your preference of the new year. And that’s an appropriate drink because Jenny, our girl, has given us something to really restart our cocktail series with this New Year. Or more accurately, the January six committee gave us something. The committee released additional transcripts of interviews that they did with witnesses, including one for Ginger Lamp.


Kate Shaw Thomas We before we get into the transcripts, I want to just propose that I don’t know, we’re doing a dry January in my household, at least mostly. And I feel like, why are.


Melissa Murray You doing that? I’m sorry. My guy just seems like a good time for a moisturized generic when I’m with.


Kate Shaw My skin will hopefully remain dewy even due here. Right? Without the drying effects of alcohol, maybe that maybe that’s a good reason to do it. But in any event, I think we need to offer some kind of, like, green juice, a nonalcoholic gin drink just for, you know.


Leah Litman Ginni Juice.


Melissa Murray For. Ginni and juice.


Kate Shaw There we go. Whatever it is you’re pouring, it’s something that pairs. Well, with that is this 100 plus page transcript of the January six committee’s interview with Jenny Thomas. And as I said, it’s 100 plus pages long. So we were just going to cover the highlights. But honestly, if you pour yourself a glass of something and are looking for some reading material, it actually is kind of worth reading to get full insight into the true insanity of what is going on there, because we only have time to cover a couple of highlights. So highlight number one, Ginny was apparently moved to tears by Rudy Giuliani and described him and Sidney Powell, another one of former President Trump’s lawyers, as heroes. In a text message to White House Chief of Staff Mark Meadows as she watched Giuliani Powell presser. So she is asked in this interview, it looks like there’s. Some text messages to Mr. Meadows in real time while that press conference was taking place. Do you see those? And Judy says, yes. And the question continues. Your first text is tears are flowing in what Rudy is doing right now. And she’s asked, Do you remember what that refers to? Jenny answers, I think somebody was identifying fraud and showing leadership and being a good communicator, and I was hopeful at that time. The questioner continues. They were tears of joy. Is that what you meant? Jenny? I guess so. Minutes later, she asked you text. Whoa. Heroes. Yep. She’s talking about heroes. She’s moved to tears by the heroism of Rudy Giuliani.


Melissa Murray And I was moved to tears as well. But not exactly, but not by the hair of joy. The moment.


Leah Litman Exactly. A deep sadness about our country is there.


Kate Shaw Was I mean I mean, there was there was, you know, somebody tears of.


Melissa Murray Laughter or possible it was tearing up to like, wasn’t that the moment where he his team, his dyed.


Kate Shaw His hair dye. And I was also crying. There were there were there were those streaks. I mean, running down his.


Leah Litman Look, I basically started crying during the court hearing when the judge asked him, what level of scrutiny do you want me to apply? And he said, you know, the normal kind of normalcy which, you know, we’ve used in our introductory music for a rational basis review. But again, that was not a tier of joy. That was I mean, I think maybe I.


Melissa Murray Just Mrs. might want to have a dry January because someone’s really been hitting the thighs for that.


Kate Shaw I do not think he drinks. I don’t know about her.


Melissa Murray But I’m sorry. But like.


Kate Shaw Maybe.


Melissa Murray The James I think these are, these are drunk texts. Like she’s going to say.


Kate Shaw Drunk on something. I’m just not sure, but I don’t know. Okay, so let’s so highly let me let me hit a couple more highlights. Highlight number two. So Jenny continues to insist that her husband, Justice Clarence Thomas, has no interest in politics and that they never discuss his work or her work and are in completely separate lanes. And yet she confirms in this interview that the best friend she had a conversation with was indeed her husband, Justice Thomas. And just to remind everyone of the context in other texts, Mark Meadows, she referred to having a conversation with her best friend, and it seemed like she was referring to talking with him about election fraud, although it’s not explicit. And in the interview, she says she doesn’t remember what the conversation was about. But basically, she says in response to attacks from Meadows thank you needed that. This plus a conversation with my best friend just now. I will try to keep holding on. And she admits to the interviewer that the best friend that she’s referring to is likely her husband, although again, she says she doesn’t recall what they talked about. That kind of gave her the strength to keep holding on. She says, I wish I could remember, but I have no memory of the specifics. But this does seem to further undermine this claim that she never talked politics with Justice Thomas to the extent it was, you know, credible ever seems really hard to accept at face value after this transcript.


Melissa Murray I’m not going to say a word. Not going to say.


Leah Litman I’ll say one word about this or maybe one sentence. You know, Clarence, who definitely has no interest in politics, was photographed, as we have talked about previously with then-Senate candidate Herschel Walker at a nonpublic section of the Supreme Court. So.


Melissa Murray Yes, Herschel Walker, pro-life, pro-choice, pro-choice, pro-life, pro-life. Herschel Walker, that guy.


Leah Litman Yeah, that’s it. So the highlight that I would point to in this transcript is Jenny was asked about her text messages claiming that the, quote, Biden crime family would be, quote, living in barges off Gitmo to face budget perdition. Sorry, I thought I would be able to say this without laughing this time, but I couldn’t. So she’s asked about these text messages, and here is what she said. I regret the tone and content of these texts. And other than that, it was an emotional time. And I was texting with a friend who I had known a long time. So I really find my language imprudent and my choices of sending the context of those emails unfortunate.


Melissa Murray So, you know, you ever have a Senate confirmation hearing? I want you to use this exact language to repudiate this entire podcast.


Leah Litman I regret the tone and content of these podcasts. And other than that, it was an emotional time. So three and a half years, I was just talking with some friends who I’ve known for a really long time. I really find my language imprudent and my choices of sending this language out on the airwaves. Unfortunate. But you know what Jenny really regrets, Melissa? It’s those text being made public because she said, I don’t know how many of you would want your texts to become public. Certainly, I didn’t want my emotional text to a friend released and made public. I just I think this is where.


Melissa Murray You’re going to run into trouble. My final highlight at the end of her interview, Ginny, of course. Berates the committee for failing to focus equally on violence by left wing activists. So again. And the left wing activist she chose to namecheck specifically was Senator Schumer. Having said some things on the steps of the Supreme Court that unleashed a lot of things that have us living with marshals right now. I think the summer of 2020 has a lot of communities who felt violence by left wing activists. The summer of 2020 refers to the protest around the murder of George Floyd. Senator Schumer speech on the steps of the Supreme Court was when he said that the justices.


Leah Litman Would reap the world, Reap what?


Melissa Murray They reap the whirlwind. I think I think everyone sort of understood what was going on. But I mean, I don’t think that’s what actually led to the justices having increased Marshall’s security. Right.


Leah Litman Yeah. Seems to me a little bit of a attenuated chain of causation there, you might say.


Melissa Murray And again, anyway, unless I missed it. Well, she was never really asked if she still believed the fraud claims that she was texting about or whether the election was, in fact, stolen or whether Joe Biden was, in fact, the rightful winner. Also, this wasn’t undertaken under oath, which is interesting. And obviously there was no referral made to the Department of Justice and nothing to do with her husband going further and no recommendations made about him. So, again, all very interesting.


Leah Litman Yeah. So the next segment, we are going to do so as not to perpetuate our error of last year by engaging in further acts of Martha and erasure. And so we wanted to highlight The New York Times follow up to the bombshell report about the influence and access campaign directed at the conservative justices. That influence and access campaign recall included buying a building across the street from the Supreme Court and having wealthy donors cozying up to the justices and having them out to their private homes and paying for access to the Supreme Court Historical Society, which is the nonprofit that supports the public history and education about the Supreme Court, the displays at the court, the gift shop at the court, and so on. And this follow up story, which is by Joe Becker and Julia Tate, focuses more on the Supreme Court Historical Society. So The Times tried to review donations to the organization, which doesn’t report its donors, and evidently they wouldn’t share their donor information when the Times asked. The organization has raised more than 23 million in the last two decades. The Times was able to figure out where a little over 10 million of that came from since 2003.


Kate Shaw And those findings are really striking. So here is what they found. At least 6.4 of the 10 million they were able to account for. So 60% plus came from corporations, special interest groups or lawyers and firms that argued cases before the court. And of that, at least 4.7 million came from individuals or entities during years in which they had pending interests in court cases, either on appeal or at the Supreme Court. So this list includes Chevron, Tyson Foods, the Ministry of Commerce of the People’s Republic of China. U.P.S. has given over half a million dollars, including when it was in front of the Supreme Court defending its discrimination against pregnant UPS driver Pegi Young. In the case, young versus yuppie.


Melissa Murray All very normal.


Leah Litman All very normal. Very normal. Yeah.


Melissa Murray Like it’s important to support nonprofit historical organizations in whatever way you can.


Leah Litman Why do you hate charity?


Melissa Murray Yeah, like I was.


Kate Shaw I was. I was. I was at the court for the murder of harbor argument, and I walked past the gift shop. And I have occasionally in the past, bought every year there’s a new Christmas tree ornament produced by the gift shop, and they’re actually lovely ornaments. And in years past, I have purchased one of these ornaments and put them on a Christmas tree. And I was just like, No, I’m not going to spend one.


Melissa Murray More on this year. This is the war I obviously like.


Kate Shaw But the point is that look like the story says virtually no one interviewed by the Times, including critics of these fund raising practices, said they believe the donations to the society had any bearing on cases before the justices. But honestly, this whole thing just reeks of impropriety. Like it just it’s I wanted to take a shower after reading the story.


Melissa Murray Also from this story, they note that quote.


Leah Litman David Pryde.


Melissa Murray The executive director of the society from 1979 until he retired last year, defended the society’s practice of seeking donations from those with interests before the court, saying he was, quote, pretty unabashed about it. Here’s another anecdote makes a similar point. The chairman of the society’s board of trustees, Gregory Joseph, is a corporate litigator who wait for it. Over the years, he and his firm have given at least $187,500 to the society, including in 2019, when he filed a submission to the court on behalf of the Sackler family, the longtime owners of. Do you farm in a case involving accusations that they siphoned billions of dollars out of the company in an attempt to deplete its coffers and limit the exposure of the drugmaker over the deceptive marketing of the drug OxyContin? All very, very normal and reasonable.


Leah Litman And just to kind of underscore, like even if this isn’t influencing outcomes in cases, it’s still gross and reeks of impropriety just because you don’t want a judicial system that is selectively immersed in a world where only some can pay for it. Right. Like this is their milieu. Right. And the point is, you have all of these large corporate donors and lawyers at big law firms who can afford to be in that world and constitute the network and surround a universe of the justices. And that’s not what you want.


Melissa Murray Oh, come on, Lee. Everyone enjoys an OxyContin ornament every now and again. Like I think you’re just taking this a little too far.


Kate Shaw And just like to add another element to this, I mean, I think the substantive mission of the society is to kind of burnish the credentials of and sort of improve the public stature of the Supreme Court. Right. So it is a quite self conscious effort to celebrate the history and traditions of and I, you know, I think to honor the current Supreme Court. And so the justices, I think, are probably somewhat invested in that mission as well. And so you can see why they are active participants. The chief justice has always been the honorary chairman of the board. They attend the events. So there are a lot of different chits being given out in various ways. And I’m glad that The Times is staying on the story and I’m glad that this one’s like really innocuous seeming organization is coming under some important and well-deserved scrutiny.


Melissa Murray Stay on their next job seeker.


Leah Litman Speaking of honoring the history and traditions of the Supreme Court, beautifully, so beautiful. Thank you. Thank you. We also got the Chief justice’s year end report, which seems to spike the football and say, let’s end 2022 with a bang of grievance and a dash of racial co-optation. So as listeners of this show are well aware, a lot happened in the courts last year, a leaked draft opinion in what was arguably the most important case in a generation. The court overruled Roe and jeopardized women’s health and equal participation in society. The New York Times reported about an influence campaign focused on conservative justices, and there are repeated claims and criticisms about the court’s sliding into illegitimacy. You know, some from sitting justices, one would think that the chief justice would want to say something about all of these issues. Some of these issues one of these issues in his annual report on the state of the federal judiciary.


Melissa Murray Well, one would be wrong. Less so. No, absolutely not. The chief justice only referenced the leak and the overruling of Roe by implication. Specifically, he focused on the security threats to sitting justices, particularly Brett Kavanaugh, that resulted, he says, from the overruling of Roe and progressive dismay and discontent over that decision. And again, I don’t want any judge to be unsafe. And I think the interest in judicial security is important. But I really would love to know where this energy was a few years ago when the gunman who killed Judge Esther Salas, his son and wounded her husband, was toting around a dossier on Justice Sotomayor. We didn’t get anything in that year round report relating or certainly not to the level that we saw here. He did praise in this report Judge Salazar’s tireless efforts advocating for the security bill that was eventually passed. But again, just to underscore, in such a momentous year, the chief justice emphasized the need for enhanced judicial security and a need for the. Please, let’s ask folks to just give in and accept the conservative supermajority. Stare decisis is for suckers energy and to make sure we really understood that he was completely serious about what he was telling us to do. He then compared resistance to the Dobbs decision to resistance to Brown versus Board of Education. So I just want to come back to you. These are the real woke warriors folks, this conservative supermajority who every 5 minutes loves to invoke Brown while they’re utterly dismantling every legacy that Brown has tried to further in our society. So you can’t make this up.


Leah Litman Yeah. And just to underscore these parallels for people who haven’t read the report, although it is a short read, you know, the report literally opens with the story of courts judges enforcing Brown versus Board of Education in the face of and resisting public pressure and public criticism. And it seems to be equating the courts and forcing Brown in the face. Have massive resistance with the current court overruling Roe and incurring plummeting of public opinion as a result. It’s also just an odd time to be invoking Brown as the court stands poised to say that Brown versus Board of Education forbid school districts efforts to integrate. And it feels like a clear effort to respond to the public dissatisfaction with the court by reminding readers that the court can be a force for good only. In doing so, it has to invoke occasions where the court promoted values like equality and justice. So unclear how apt the analogy is, sir.


Melissa Murray Justice for Justice’s.


Leah Litman Rights.


Melissa Murray That’s all we have time for, folks. We hope we’ve gotten you up to speed for this first sitting of 2023. It starts today on January 9th. And until then, just remember, 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 with Audio Engineering by Kyle Seglin and Music by Eddie Cooper. Production support from Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. See you soon.