President Donald Trump appointed Judge Brett Kavanaugh to the Supreme Court because he trusted Kavanaugh to do his — and the ruling class’s — bidding. Almost as soon as he was nominated, Kavanaugh’s lap-dog adherence to capitalist oppression and exploitation, and contempt for workers’ rights, were exposed.
No wonder the organized labor movement quickly condemned Kavanaugh’s nomination. AFL-CIO President Richard Trumka denounced Kavanaugh’s “dangerous track record protecting the privileges of the wealthy and powerful at the expense of working people.” The Communication Workers union anticipated he would “continue to protect the interests of already powerful corporate CEOs instead of working families.” The Service Employees union asserted that “Kavanaugh would tip the scales of justice against working people.”
Not only has Kavanaugh consistently sided with the bosses on labor and employment issues, but he has shown a willingness not to follow Supreme Court precedent and strike out on an aggressively anti-worker agenda, which has particular relevance today to immigration issues, union representation and workplace rights.
In that sense Kavanaugh will be no different from Justice Anthony Kennedy, whom he would replace on the court. Kennedy, who wrote the majority opinion in the despicable Citizens United decision — that corporations have First Amendment rights just like people — could always be counted on to support management in major decisions.
Kennedy did that in two blockbuster anti-worker cases decided 5-4 this spring: Epic Systems, which made it legal for employers to require workers to sign class-action waivers; and Janus, which denied prior SCOTUS precedent that people working in the public sector who choose not to join unions have to pay dues (“agency fees”), because they benefit from collective bargaining. The Janus ruling struck down the right of public sector workers to have strong, united representation on the job and, basically, replaced that with right-to-work (for less!) conditions.
Kavanaugh: undocumented workers not ‘employees’
Two cases highlight Kavanaugh’s boldness in overturning precedent, though there are a whole range of decisions in which he consistently ruled for bosses over workers, especially in National Labor Relations Board decisions.
His dissent in the 2008 case of Agri Processor Co. Inc. v. NLRB is particularly illuminating. Not only did the judge throw out two Supreme Court precedents when he ruled, using biased language, that undocumented immigrant workers were not employees; he also asserted that these workers had no right to engage in collective bargaining.
Kavanaugh affirmed Agri Processor’s claim that undocumented workers were not covered by the National Labor Relations Act of 1935 because a more recent law — the Immigration Reform and Control Act of 1986 — said it was illegal to knowingly employ them. But the judge ignored the precedents in the Hoffman Plastic Compounds and Sure-Tan cases that affirmed undocumented workers were “employees” covered by the NLRA.
Not only does this expose Kavanaugh’s lack of compassion for and bias against im/migrants, but it signifies the possibility that he could support a ruling that would establish a new, blatantly racist precedent in the future. Given Trump’s up-front hostility and outrageously criminal meanness to im/migrant families, Kavanaugh is Trump’s dream-date candidate for the court.
Kavanaugh’s “willingness to go out of his way to write a whole group of people out of the protection of the [law] … is troubling,” wrote Sharon Block, former member of the NLRB, who is now a Harvard Law School professor. (HuffPost, July 11) It’s more than worrisome; it’s downright dangerous for those fleeing countries that have been impacted by U.S. power politics and violence.
However, there could be other, very serious implications for all workers if undocumented workers can’t unionize, observed the HuffPost article: “That would only make it harder for native-born workers to land jobs; it would drive down pay and working conditions across industries.” Kavanaugh’s interpretation of the law “could easily apply to other critical workplace statutes, including the minimum wage and overtime protection of the Fair Labor Standards Act. … Employers would have much less to fear by committing wage theft and undercutting pay for everyone.”
Wow! That sure explains why Kavanaugh topped Trump’s SCOTUS wish-list.
Attacks on OSHA, labor protections
Another Kavanaugh dissent, in the 2014 decision SeaWorld of Fla., LLC v. Perez, not only attacked the Occupational Safety and Health Administration’s right to levy fines against SeaWorld for safety violations after the whale Tilikum killed trainer Dawn Brancheau in 2010. It also dismissed OSHA’s protections for workers as “paternalistic” and questioned the basic premise of OSHA’s role to determine appropriate levels of risk for workers.
Kavanaugh stated that owners who provide public entertainment should be free from addressing known risks for workers, and workers should be able to decide whether the risks are worth taking. He argued that the majority decision could lay the foundation for OSHA outlawing NASCAR races and National Football League games.
Jordan Barab, a former OSHA official during the Obama administration, was quoted in the HuffPost article: “Kavanaugh’s idea of making America great again apparently hearkens back to the time before Workers Compensation laws and the Occupational Safety and Health Act were passed. Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employees had ‘assumed’ the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.”
Doesn’t that sound like something Trump would tweet? But, hey, don’t give him any ideas or he’ll try to get rid of OSHA regulations. His recently departed lackey, Scott Pruitt, has already started at the Environmental Protection Agency.
Davis, a longtime reproductive justice activist and author of the pro-choice novel, “Love Means Second Chances,” will cover Kavanaugh’s positions on abortion rights and reproductive justice in a separate article.