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The Roberts Court and the Unraveling of Labor Law

By Courtlyn G. Roser-Jones. Full Text.

Labor law comprises several doctrines and procedures that oversee the relationships between employers, unions, and the workers they represent. These doctrines—the duty of fair representation, exclusivity, good-faith bargaining, captive-audience speech, and rights of equal access—are all component threads to a tapestry designed to facilitate widespread organizing and collective bargaining. Yet the Roberts Court has brushed aside how entwined these threads are and, in so doing, has undercut labor law’s far-reaching mandate. Likewise, this Court has disregarded the expertise of the National Labor Relations Board, the administrative agency tasked with weaving together specific legal canons in ways that reflect labor’s broad policy initiatives.

This Court’s 2018 decision in Janus v. AFSCME remains the most blatant upending of embedded labor doctrine in history. But it is not the last. Rather, in a series of maneuvers, the Roberts Court has unraveled interwoven labor strands without regard for the careful balancing of interests or the core principles labor’s entire legal system strives to maintain. What remains is a mish-mash of compromising doctrines that, when viewed apart from each other, are hard to reconcile with expanding protections of individual liberties. That is, these remain until they too are unwound by a judiciary scripted to play only a minor role in labor’s specialized regime.

In this Article, I describe ongoing efforts to extend Janus’s reasoning and interpretive methods as a roadmap to over-riding collective bargaining obligations, and as a series of roadblocks to future labor reform. But these routes have a toll. As the Court considered another high-profile labor case this past term, the aftermath of a worldwide pandemic has shined new light on workplace inequity and renewed public support of organized labor. As such, the Roberts Court’s chipping away at labor strike protections and preemptive guardrails in Glacier Northwest, Inc. v. International Brotherhood of Teamsters has profound implications for more than just labor law and the labor movement. Out of step with public preferences again, Glacier Northwest, Inc. and other Janus-extending decisions are central in debates on the Court’s legitimacy and its role in shaping social and economic landscapes.