Don't Reform the Courts. Disempower Them.

Criminals are often said to have a modus operandi—a standard set of underhanded tactics for achieving their illicit agenda. The same kind of pattern can be seen on the other end of the legal spectrum, among Supreme Court justices. Over the last few decades, the strategy of the reactionaries who dominate the courts has repeated itself again and again in cases involving fundamental rights: First, they whittle away at the rights, and then, when they have a secure majority on the Supreme Court, they eviscerate them entirely. Reproductive freedom is the best example: The rights supposedly enshrined in Roe v. Wade (1973) were chipped away bit by bit over many years in smaller decisions before the final blow came in Dobbs v. Jackson’s Women’s Health Organization, which ended the constitutional right to abortion last year.

On Thursday, SCOTUS released another distressing decision, Glacier Northwest v. International Brotherhood of Teamsters. Adjudicating the alleged liability of workers for business costs incurred by their employers during a sudden strike, the court found against the union but based its reasoning narrowly on the facts of the case. In doing so, Glacier preserved, at least for now, the crucial doctrine of Garmon preemption, which holds that disputes of this sort should be decided by the National Labor Relations Board (NLRB) rather than the courts. The end of Garmon preemption would return labor law to the pre–New Deal era when right-wing judges routinely used the idea of economic damage to squash unions and labor resistance. Glacier carved out a narrow exception to Garmon but left the doctrine, in theory, largely unharmed.

It’s possible to spin the Glacier decision in a way that offers some consolation to liberals. It was an 8-1 decision, with only Justice Ketanji Brown Jackson dissenting. But, as my colleague Jane McAlevey pointed out in an illuminating analysis, that majority of eight actually consists of two competing blocks. The majority decision, written by Justice Amy Coney Barrett, was joined by two other conservatives, Chief Justice John Roberts and Brett Kavanaugh, along with two liberal justices, Sonia Sotomayor and Elena Kagan. There was a concurring opinion by three conservatives who agreed with the outcome of the decision—but wanted to go much further: Samuel Alito, Clarence Thomas, and Neil Gorsuch. Alito filed an opinion—joined by Thomas and Gorsuch—making clear that they wanted to use the case to demolish Garmon preemption, a goal they will surely continue to pursue.

Like the Dobbs decision, Glacier should force liberals and leftists to think more radically about the courts. As the courts have grown more openly reactionary, they have been losing popular legitimacy. This has led to Democrats’ talking about court reform, including expanding the size of the Supreme Court.

https://www.thenation.com/article/politics/supreme-court-glacier-disempower/