Supreme Court nominee not a sure-thing progressive

Bill Knight column for Thursday, Friday or Saturday, April 21, 22 or 23

The nomination of Judge Merrick Garland to fill the U.S. Supreme Court vacancy resulting from the unexpected death of Judge Antonin Scalia might cause labor to take heed of the old saying, “Be careful what you wish for.”

While Garland during his 19-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit generally has favored labor, that could be because of his “strong views favoring deference to agency decision-makers,” according to Tom Goldstein of SCOTUSBlog, instead of his having a strong pro-labor viewpoint.

Garland’s judicial record on labor cases led many union leaders to endorse President Obama’s nominating the Chicago native. For example, AFL-CIO president Richard Trumka praised Garland’s “impeccable credentials and deep experience.”

However, it’s useful to temper any expectations with context in considering what kind of Supreme Court Justice Garland would be. As Goldstein said, Garland seems to have been a cautious judge who usually agreed with government agencies, whether the National Labor Relations Board or the State Department.

In fact, when Garland served with current Chief Justice John Roberts on the Court of Appeals for two years, Garland agreed with Roberts 85 percent of the time in 34 cases on which they both worked.

Looking at cases they shared, Roberts concurred when Garland wrote that union activists could legally leaflet one of their employer’s facilities despite not working at that job site, but Garland signed on when Roberts overruled an NLRB ruling that a group of college workers had bargaining rights. Also, the two agreed in refusing to hear a lower court case permitting the Bush administration’s requirement that government contractors post information about employees’ right to not join unions.

They also disagreed a few times, such as Garland’s dissent in a Roberts’ opinion that two contractors didn’t break the law by delivering defective train cars to Amtrak.

“Given his preference for restraint, it’s unlikely that Garland would significantly counter the Court’s pro-business tilt of the past four decades,” commented Justin Miller, a writing fellow at The American Prospect magazine. That’s significant at a time when the Supreme Court – including its “liberals” -- has grown more supportive of big business’s interests even as everyday Americans’ anger at the corporate agenda has increased, according to Noam Scheiber in the New York Times. Scheiber noticed “a growing rift between the country and the nation’s highest court on questions of economic power and support for big business.”

As Galesburg native and independent journalist David Moberg wrote in In These Times magazine, “It’s hard to give [Garland] a clear political label, but Garland does not seem to be as progressive on workers’ rights issues as Scalia was reactionary.”

True, Garland -- appointed to the Appeals Court by President Bill Clinton -- upheld NLRB’s Unfair Labor Practice charges 18 out of 22 times, but, again, that arguably was in support of a government agency.

As Catherine Fisk wrote in onlabor.org, appointing a genuine progressive -- or at least someone sympathetic to labor itself and not the government agencies responsible for enforcing labor law -- could be momentous for workers.

“Scalia’s death should put the brakes on National Right to Work’s effort to speed a case to the Court asking it to eliminate exclusive representation for home care workers or, perhaps, even for all public sector workers,” Fisk wrote. “Not only that, but a newly-constituted Court might decide that ‘Harris v. Quinn’ was wrong to eliminate fair share fees for home care workers and that ‘Knox v. SEIU Local 1000’ was wrong to prohibit unions from charging nonmembers for mid-term assessments.”

Further, adding a truly liberal voice could open the door to challenges on several 5-4 decisions that undermined workers’ rights, she said. Still, Garland might be influential on cases that center on the National Labor Relations Act, arbitration agreements, and workers’ First Amendment rights.

For now, however, labor has the Garland nomination (and an obstructionist Senate), and he is what he is. As to the common ground between him and Roberts, that could mean Roberts is less of a conservative firebrand than feared, or that Garland is more moderate than many would have preferred. Finally, progressives might recall another familiar saying -- a line made famous by conservative Republican President Ronald Reagan: “Trust but verify.”

[PICTURED: Labor activists demonstrate outside the U.S. Supreme Court building this winter. Photo from North Bergen Federation of Teachers]