SCOTUS Watch: Jackson Dissents

June is typically when there are a bunch of hot-button cases decided by the Supreme Court. The month started relatively softly with three cases, two unanimous.  Few care about either.  The third was a bit more tricky.  

Thomas: "The justices sided with whistleblowers on Thursday in a dispute over whether two pharmacy giants – SuperValu and Safeway – knowingly overcharged Medicare and Medicaid for prescription drugs."

Gorsuch: "rejected a lower-court ruling that had substantially broadened liability for publicly traded companies under Section 11 of the Securities Act of 1933."  

While the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.

The third is something of a 5-3-1 "anti-union" opinion with the controlling opinion making it harder for unions, but how much is unclear.  Barrett has the main opinion with Thomas/Alito being joined by Gorsuch willing to go further. All don't write much. Jackson, in her first dissent in a case receiving a full review, wrote an opinion longer than them all together.  

“Workers are not indentured servants,” she wrote, “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.”

Jackson's dissent is strong, starting with a bedrock statement: "The right to strike is fundamental to American labor law." She criticizes the majority for not being "modest" and "reaching out" and its "misguided foray" etc.  And, she says that the majority is trying to have it both ways (minimalist and reaching out -- signs of a compromise?). Later she notes they "seem to misunderstand" and then argues it ignores congressional intent.

The general assumption seems to be that Sotomayor and Kagan went along with the majority since it is the best they could get with three conservatives willing to go further.  Plus, maybe, they simply think the result here is narrow.  It is a brief and mostly dull opinion that lets the dissent be.  Alito briefly references it.  The dissent is somewhat curiously mostly solo.  

And, as noted by Jackson herself, on remand, the reach of the majority's result, in this case, can be relatively slight. The fear is it will in later cases put labor in a harder position.  At any rate, it is a chance to see Jackson speak her mind and show her in action.  This time not joined by Gorsuch or anyone else.  

[Chris Geidner covers this in his excellent analysis.]

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We will see how this term's affirmative action cases will go but this is a good discussion on why class-based alternatives only go so far.  Here's a bit on an Oklahoma abortion case.  And, a reminder -- lest we forget -- that the Supreme Court is worthy of some contempt:

They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).

The op-ed also notes how the Supreme Court in the Roberts years has been taking on more and more power while having a superior view of itself as "outside" of the political process.  This sense of superiority is as Stephen Vladeck argues something that should be pushed back upon. 

I have a general rule that history suggests ebbs and flows in various respects but few "golden ages."  I do not think -- not that the op-ed quite says this -- that this view is new in the last fifteen years. 

The Supreme Court has had an expansive view of itself for a while, in part a development of the growth of the government as a whole.  The Lochner Era got pushback for invading appropriate economic regulation but it left in place (not always ideally) a lot of other things (see segregation).  

I have a degree in history and write about it these days for another website. History overall is important. It's something to keep in mind.  We do also have to live in our own time. So, it is okay to view things through the lens of the Roberts Court.  Look at what it is doing.  Respond to what is in front of us.  

The op-ed is correct to say the liberals on the Court are not free from blame. I have noted my disdain for their tendency to circle the wagons. There are moments. Sotomayor in her appearances repeatedly teaches that don't who believe change is needed should resist.  She grants she doesn't like certain things that are happening results-wise.  

Kagan has criticized the shadow docket. It is not surprising that she is the first one that labeled why she recused in a case.  When she introduced Roberts, she noted there are things that make her want to pull her hair out.  Yes, she or Sotomayor could have shown up.  Or Jackson. 

But, they would be not private parties.  They would be representatives of the Court.  It is fitting that that is done by agreement among the justices.  We don't know if Kagan or someone else suggested that Roberts or maybe a liberal/conservative tag team show up.  Or, how that attachment to Roberts' letter that was signed by all the justices (which spelled out basic ethical rules they followed ... somehow) was negotiated.  

Telling fact.  I was disappointed by Biskupic's latest book because this internal "behind the scenes" aspect was in my view not really provided enough to add much to what I already knew about the events.  Adding to the lack of many results, it is not a very satisfying mitigation.  I do think the liberals have some agency here though they have limited power. 

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There will be more orders on Monday and another opinion day next Thursday.  And, perhaps an execution.