What John Roberts Has Wrought

Today on TAP: His majority opinion striking down the SEC’s jurisdiction may not apply to the NLRB. But it’s too early for unions to breathe a sigh of relief.

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At first glance, today’s Supreme Court ruling striking down the SEC’s right to use its own administrative courts to enforce securities laws can be read as also imperiling the functions of the National Labor Relations Board (NLRB)—and by extension, the future of American unions—as the Board also relies on its own administrative courts to enforce the laws against unfair labor practices. At second glance, the majority decision, authored by Chief Justice John Roberts, appears to have exempted the NLRB from its strictures. At third glance, the Court still has pending a case that could strip powers from most regulatory agencies; Amazon, SpaceX, and Trader Joe’s have filed a separate suit in federal district court specifically challenging the NLRB’s powers; and Sam Alito’s record of actually inviting lawsuits that challenge the power of unions is such that his hatred of organized workers must be viewed as a persistent threat to the Board, and the nation’s workers.

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Unpacking those glances, one by one: By a 6-to-3 margin divided on ideological lines, the Court ruled today that the SEC’s power to use its own administrative courts to rule on cases such as fraudulent misrepresentation—powers expanded by the Dodd-Frank Act in the wake of the 2008 financial collapse and the revelations of chicanery that contributed to it—violated the Constitution’s separation of powers by depriving the accused of their day in a real federal court. The SEC was established, of course, precisely to rein in misconduct by banks and other financial institutions, and has long had the kind of expertise in such matters that is very often lacking in “real” courts. That’s probably why a 2017 study of the alleged bias of the SEC’s administrative courts revealed that its decisions—their rates of convictions and acquittals—matched those of those real courts. Today’s shift in jurisdiction from the agency to the courts, then, amounted to a “power grab” by the Court, for the Court, in the words of the dissenting opinion of Justice Sonia Sotomayor.

At second glance, however, Roberts, in seeking to specify which kinds of agency courts were kosher and which weren’t, seemed to give the NLRB an out. He cited the Court’s 1937 ruling in Jones & Laughlin Steel—the decision that upheld the newly enacted National Labor Relations Act—as making clear that the kinds of rulings delivered by the NLRB’s administrative bodies were exempt from his decision. The NLRB’s rulings deal with the “unfair labor practices” specified in the NLRA, which are not themselves the subject of other laws that would come before the courts. Roberts may have concluded that the Court’s standing with the public was already so dismal that a decision that effectively defanged unions—whose standing with the public is at a 50-year high—wasn’t a particularly politic move.

The current NLRB general counsel, Jennifer Abruzzo, has been working to speed up the Board’s remedies for the particular unfair labor practice that employers customarily use to deter their workers’ unionization campaigns: illegally firing the most pro-union workers. The NLRA’s remediation, should the employer be found guilty, requires the rehiring of the fired worker(s)—which, if done promptly, could keep the union drive going, perhaps even boosting its prospects. Should those cases be shifted to the courts, however, the time elapsed before a decision could come down would surely be so long that the unionization campaign would likely have long since ceased to exist—thereby effectively blocking workers’ right to collective bargaining.

But Roberts’s apparent NLRB exemption in his decision may not be the Court’s final word. The Court still has one more case to rule on in this session that could weaken all regulatory agencies (and enlarge the powers of the Court). The lawsuit brought by Elon Musk’s and Jeff Bezos’s companies challenges the NLRA on somewhat different grounds, that of the Board wearing too many hats (the affront to their own sovereignty and the disdain with which the world’s richest men view their workers’ attempt to gain some modicum of workplace power and security are surely the de facto cause, but not the de jure). And nothing in the history of this Court, and particularly Alito’s ability to push it to extremes in weakening the rights of women and workers, should inspire any confidence that it won’t be coming for the NLRB in future sessions.

So did American workers dodge a bullet today? They may well have, but others are still flying around.

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