Jose Luis Magana/AP Photo
Abortion rights activists hold signs as they protest outside the Supreme Court during a rally, March 26, 2024, in Washington.
In our time, there’s no such thing as an unequivocally good day at the Supreme Court. Even today, when the Supremes ruled unanimously that the law of the land still upheld the right to end an early unsought pregnancy through medication-induced abortion, the Court only tossed the challenge to the FDA’s pro-mifepristone rulings because the plaintiffs—a group of disgruntled Texas doctors—lacked standing to bring the case. But many of the states that have outlawed abortion since the Court struck down Roe have made clear they’ll file their own cases, and they probably do have standing. Moreover, a future FDA dominated by Republican appointees could reverse the agency’s ruling on abortion-inducing pills, as could a Republican Congress in concert with a Republican president.
For now, though, today’s ruling is good news for women in Texas and most other Republican trifecta states where medical-procedure abortions have been banned. It’s also a good day for Republicans’ electoral prospects, since Donald Trump and Republican candidates in swing states and districts can now argue that their judicial appointees (in Trump’s case) or champions (for those other embattled GOPniks) have left an avenue open for ending unwanted pregnancies—though, as noted above, those avenues still can be blocked by Republican lawmakers and judges. I suspect such Republican electoral calculations figured into the decision of Messrs. Thomas, Alito et al. to rule this way now, in full knowledge that other plaintiffs who do have standing could enable them to strike down the medication option once this year’s elections had safely come and gone.
Just to make sure that today’s Court decisions were as much downers as uppers, the Court also ruled, kind of unanimously, that federal courts needed a stricter standard in granting injunctions requiring employers to rehire workers they’d illegally fired in order to deter those workers’ campaign to unionize. At issue was whether a court considering a suit filed on behalf of fired workers by the National Labor Relations Board could issue an injunction if there was “reasonable cause” that courts would later find the firings illegal, or whether there had to be a higher standard for such an injunction, specifically, that “irreparable harm” would be done if the workers were not reinstated forthwith. The Court’s decision today said that lower courts had to follow the “irreparable harm” standard, chiefly because that was the threshold that other federal agencies had to meet in order to win injunctions.
With the partial exception of Justice Ketanji Brown Jackson, it was all the justices who ruled that the higher standard had to be met. Jackson’s concurring decision noted that showing irreparable harm shouldn’t be that hard to do.
But what today’s decisions really showed was that Democratic presidents need to win assurances not only about their judicial nominees’ commitment to reproductive freedoms, but also about their understanding of the dynamics of work in America. The surest way an employer can block his or her worker’s legal right to form a union is to illegally fire that worker, which in and of itself does immediate irreparable harm, almost invariably, to unionization campaigns. Requiring the higher standard could, and often does, lead to protracted court proceedings that take months or even years, by which time the workers’ organizing campaign will be a dimly recalled memory of a disheartening defeat.
There was a time when unions were so big and powerful that many leading Democratic lawyers, including those sitting on the Supreme Court, had an experiential or at least intuitive understanding of how the particular protections that the National Labor Relations Act afforded workers actually played out, or failed to, during organizing campaigns. But the last Democratic-appointed Supreme Court justice with a background in such matters was Arthur Goldberg, who’d served as the general counsel for the CIO and the United Steelworkers before John F. Kennedy made him his secretary of labor, and then, in 1962, an associate justice of the Supreme Court. (Lyndon Johnson then used the “Johnson treatment” to persuade Goldberg to switch his job in 1965 to that of the U.S. ambassador to the U.N., thereby enabling LBJ to appoint his own legal consigliere, Abe Fortas, to what was then considered “the Jewish seat” on the Court.) There have been a number of Democratic-appointed Supreme Court justices since then (never enough, alas), but Goldberg may have been the last one who could easily make the case why workers’ right to collective bargaining requires immediate reinstatement when they’re illegally fired for seeking to unionize.
All that said, a 50 percent day at our current Supreme Court is the best that good-hearted sentient Americans can expect.
