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Trump to Pick a Supreme Court Justice Tonight

A look at the abhorrent labor records of the four front runners

Brian Young's picture
Jul 09, 2018

Tonight at 9 PM, Trump will be announcing his 2nd pick for the Supreme Court. While Justice Anthony Kennedy, the justice who is stepping down, was no friend to labor, this pick will solidify the court's opposition to unions for decades to come. Kennedy, who was seen as a swing vote and someone who moderated opinions served as the deciding vote in the Janus case and the next justice is likely to hear cases determining opt-in and opt-out rules for unions and one challenging private sector agency fees. Here is a look at the candidates who Trump and the media have said are the finalists along with their histories of supporting or opposing unions.

Judge Brett Kavanaugh

Kavanaugh has a long history of opposing unions and collective bargaining. Perhaps his biggest case was American Fed. Of Gov’t Employees, AFL-CIO v. Gates in which he ruled that the Department of Defense had the authority to curtail or curb their employees' collective bargaining rights. The dissenting judges argued that Kavanaugh’s opinion would allow the government to abolish collective bargaining rights. This case is especially important as a bill works its way through Congress that would abolish AFGE’s right to represent workers at the IRS.

Some of his other decisions said that undocumented workers had no right to organize a union. He also overruled an unfair labor practice decision against the Venetian Hotel and Casino in Las Vegas saying that they had the right to request that police issue citations for protesting on public property outside of the Casino. Finally, in a dissenting opinion, Kavanaugh wrote that OSHA shouldn’t have the ability to regulate safety in sports and entertainment. This came as part of a case against Sea World where a trainer was killed by a killer whale.

Judge Raymond Kethledge

Kethledge a judge from Michigan, would be another disaster for labor. He was one of the judges that upheld the Right to Work law in Michigan, ruled that it was legal for Speedway to fire an employee for being pregnant, and helped to greatly expand the definition of a “supervisor” in an effort to prevent employees from joining a union. In one of his most important cases, Kethledge ruled that church workers who said that they were coerced by the pastor to work for free at church events didn’t deserve pay. In the decision, he argued that labor law has no right to regulate spiritual dialogue between a pastor and their congregant and trying would violate the first amendment. This argument is currently being used in a number of Catholic universities to argue that the Labor Department and the NLRB have no right to regulate them and allow their staff to organize.

Judge Amy Barrett

Barrett is getting a lot of attention for her writings on faith, questioning whether a judge should adhere to legal principles or bring their own faith and religion into their jurisprudence. While this worries some, her decisions on workers rights should worry more people. In one case, she denied an employee’s claim of racial discrimination. The dissenters in the case argued that her opinion was the return of racial discrimination based on the separate-but-equal doctrine that was used to segregate schools in the South. 

Judge Thomas Hardiman

Thought to be a late addition to the list, Hardiman was added as a “safe” pick since he has a low profile on reproductive rights. He also has a short history of workers rights cases, although he has sided with the employer 100% of the time. The first ruling was against an African American worker who sued SEPTA, Philadelphia’s mass transit system, for racial discrimination saying that they promoted whites over qualified African Americans like himself. In the second case, Hardiman ruled against an employee at West Chester University who blew the whistle on management who was cooking the books.

Court speculators on Monday said that Trump has soured on Kethledge and Barrett, meaning that Hardiman and Kavanaugh are the front-runners. However, the New York Times reported that Trump was still working the phones on Monday, signaling that just hours before his press conference he had not yet made a decision on the pick.

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