If you’re worried about how the 6-3 conservative supermajority on the Supreme Court will change the country, you probably think mostly of hot-button issues like abortion and guns. But while Roe v. Wade could indeed be overturned and gun regulations could be struck down, we don’t have to wait to find out about an equally important, sweeping right-wing revolution this court has planned.
Because it has already begun.
On Wednesday, the court handed down a momentous decision in Cedar Point v. Hassid, striking down a state law that has been in operation since the 1970s. The details of this case matter, but most important is the broader context: The Roberts court may allow the Affordable Care Act to stand, and may not always agree with the Republican Party in its coming deluge of suits against the Biden administration. But big business will get just about everything it wants from this court.
And what it wants is a remaking of U.S. law that reduces workers’ rights, hamstrings the ability of government to regulate and puts business interests over those of everyone else.
In the Cedar Point case, an agricultural company sued over a California law that allows union organizers to enter their property to talk to workers on 120 days a year for three hours a day (before and after work, and at lunch hour). That law was one of the great victories of the farmworkers’ movement led by César Chávez and Dolores Huerta, an acknowledgment that some of the least powerful and lowest-paid workers — the ones we now call “essential” — deserved the chance to bargain collectively and have their rights respected.
But the court ruled that the regulation allowing for union organizing is a “taking” of the company’s property, which the Constitution says requires compensation.
There are two kinds of takings: per se takings, like the government bulldozing your house to build a freeway, and regulatory takings, which leave you with your property but reduce its value in some way (to simplify a bit). If you sue over regulatory takings, you’re much less likely to prevail.
But the majority decision, written by Chief Justice John G. Roberts Jr., said the company had been subject to an unconstitutional “taking” of its property even though the regulation in question didn’t affect the value of the property at all. The mere fact that a third party was allowed to “invade” the property, Roberts wrote, means that either the invasion has to cease or the government has to compensate the company.
“The Cedar Point decision is certainly going to encourage a lot more litigation over labor unions and challenges to the rules designed to make labor unions effective,” Adam Winkler, a UCLA law professor and author of a book about how corporations won civil rights for themselves, told me.
But this goes beyond the line of recent cases in which the court has undermined unions — which it began to do even before it reached its current 6-3 conservative majority. In fact, Winkler says, the expansion of business rights at other people’s expense “is happening on a lot of different fronts.”
Labor unions are seeing their rights curtailed. In the Hobby Lobby and Masterpiece Cakeshop cases, the court made it possible for businesses to circumvent anti-discrimination laws. In Citizens United it broadened corporations’ political rights. And it looks ready to take a hatchet to the government’s ability to regulate — what some conservatives gleefully refer to as “the dismantling of the administrative state.”
Here’s a handy guide to the future: In any case where the interests of a corporation are pitted against the interests of workers, consumers or the public in general, this Supreme Court will hand victory to the corporation.
The Cedar Point case alone could open the door to extraordinary restrictions on government’s power to protect consumers. For instance, restaurants could now claim that health inspections constitute a similar “invasion” of their property, and claim the right to bar the door to them. Companies could argue that federal worker-safety inspections are also unconstitutional “takings” of their property.
“Many kinds of inspections we’ve gotten used to over the last hundred years” could be at risk, Winkler told me.
It’s hard to tell how far the court’s conservatives will go, but some have warned that we’re headed for a return to the Lochner era, named for the infamous 1905 Supreme Court decision that struck down a New York state law limiting the hours bakery workers could be forced to work.
What followed was a series of decisions eviscerating the government’s ability to protect workers, consumers, and public health. In those cases, the court struck down all sorts of regulations on workplaces — including those on wages, safety and even child labor — often by saying that they infringed the right of employers and employees to enter into a “free” contract with one another (contracts that of course left all the power in the employer’s hands).
Those decisions were eventually overturned, and these days only the most extreme libertarians will say publicly that they want to return to the Lochner era. But where we’re headed may not be that much different. “I do think we are going to see a revolution of sorts,” Winkler told me. “The question is how wide-ranging it is.” We’re just beginning to find out.