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Workers are becoming less empowered

The author of this piece "The Roberts Court Protects the Powerful for a New Gilded Age" by Jedediah Purdy, a professor at Duke Law School, puts recent Supreme Court decisions in stark terms. Workers are becoming less empowered, and the Supreme Court is actually removing the power of state governments to do something about it. Moreover, the Court is reading contracts in insane ways that strip workers of rights. I agree with the author's assessment. 

There is a regal elegance to the Court's recent decisions. They aren't illogical. They follow notions of contract law. But they are divorced from reality. A famous Supreme Court Justice said almost a hundred years ago that experience is more important than logic in the law. To provide perspective we know that not all contracts are enforced. You cannot sue to enforce a contract to sell cocaine at a certain price or to buy a slave or to defraud a person. These contracts are illegal.


When you sign paperwork on your first day on the job, you have no bargaining power. You have given up your old job and shown up for work. The Company HR person says sign or you're fired. You sign. The Court just held that this paperwork is a contract that binds you, even if your Employer fails to pay you all your wages, and you signed a document giving up your right to sue them if they did that. You can go to arbitration instead. There's a big difference.


There is also hypocrisy at work. The Court is pretending as if its removal of the restraint of the power of big business resembles what the Framers intended. This is laughable nonsense. There were no big businesses when the United States was created. There were barely any corporations at all. There is no way that Madison, Hamilton, and Washington were thinking about the relationships between powerful entities with billions of dollars, contributing millions to elect Congressmen, and who could force workers to sign contracts they did not understand. 


Corporations only developed in large numbers in the nineteenth century with changes in state government law, well after our Constitution was founded. Corporations allowed individuals to band together with limited liability to invest in building factories. They allowed for the industrial revolution in the US. But as every high school student who studied US history knows, by the end of the 19th century, our laws changed to react to the sweeping power of the railroads, steel companies and banks and other giant companies and "trusts".


First, there were political changes, with a change in our political parties, resulting in changes in how we elect Senators to make it more democratic. But legal changes were necessary.


State governments tried, but the Supreme Court stopped them with a case called Lochner v NY (1905) that prevented New York from regulating the hours of child labor. At the time, the Court held that the Constitution protected the rights of factories to force children to work unlimited hours. I'm not making this up. Look it up.


The excess of unrestrained capitalism in the early 20th century led to a booming stock market and wealth for some, but impoverishment for more of us.


As more workers were impoverished, fewer could spend the money to buy the products being made. This weakness of "aggregate demand" (to use a term from economics) caused a string of business bankruptcies in a serious recession in the 1890s and then the Great Depression in 1929-1940.


Eventually, even many business owners began to see the need for regulation. The change started with antitrust laws in the early part of the twentieth century and led to the New Deal legislation in the 1930s that fostered labor unions and government regulation. Later on, the same reasoning led to consumer protection and civil rights legislation and court opinions upholding those laws.


The American experience is that when big business and Congress are too close, we need the courts to protect the working person from abuses. Ultimately, business owners benefit as well because these policies ensure enough people have sufficient money to spend to maintain economic growth. At a time when both Republicans and Democrats share concerns of economic inequality, it seems strange that the Court is adopting a rigid adherence to legal doctrines that prevent the government from restraining business.


But to those who carefully read the opinions of Federalist Society judges, this is no surprise. There is a blind faith and arrogance in these judges that they can interpret the will of the Founders. Judges are not priests. They should walk around outside, meet normal people, and gain wisdom from life. When they just listen to each other and they all live in the gilded monasteries of federal courts with lifetime jobs, they tend to write increasingly foolish decisions. Their arrogance will end up hurting capitalism and the stability of the Republic, not helping it.


What a shame. 

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