Marcio Jose Sanchez/AP Photo
Farmworkers wait to start picking melons, September 20, 2018, near Five Points, California.
On Wednesday, the Supreme Court reaffirmed one of its most venerable traditions: upholding the rights of property over the rights of humans, most particularly humans who happen to be employees. By a 6-to-3 vote, the sextet of Court conservatives struck down a 46-year-old California law that permitted union organizers to go onto the state’s mega-farms to talk to farmworkers before and after their shifts, and during lunch breaks. As farmworkers have never been covered under the National Labor Relations Act, California, under the leadership of then-Gov. Jerry Brown, passed groundbreaking legislation granting them collective-bargaining rights in 1975, the first year of Brown’s first term as governor. Because farmworkers were often migrants with no fixed addresses, the new law enabled organizers to talk to them at their worksite—but only at those specified times and only for a limited number of days.
This week, the Gang of Six ruled that law was an unconstitutional “taking,” which reduced the value of the farm owners’ property by some unspecified amount the state would either have to pony up or else forbid the union organizers from contacting the workers. The Court’s three liberals—Associate Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented, arguing that the majority’s ruling not only diminished workers’ rights to organize but also opened the door to requiring states to compensate owners for going onto their property to check if health and safety laws were being observed. My own dissent would have noted that visits by union organizers could actually enhance the value of the property for those whose work made it valuable, but that’s just one of many reasons why I’m not on the Court.
So current governmental policy, if I have it right, is that we honor Cesar Chavez’s birthday but get rid of the law that enabled his union to win decent pay and benefits for farmworkers. I’m pretty sure Cesar would have preferred to have it the other way around.
This isn’t the first time a Supreme Court ruled on this very question. In the 1970s, the California Supreme Court—then widely viewed as the pre-eminent state court in the land—upheld the very law that the U.S. Supremes struck down this week. And then as now, agribusiness’s anger at this affront led them to go after the upstarts who dared put workers on the same footing as owners. I know this because it’s part of a story to which I was particularly privy.
In my younger, pre-journalist days, when we still lit our rooms with kerosene lamps, I was a political consultant for a range of progressive causes and candidates in California. In 1986, I ended up running a statewide campaign on behalf of three California Supreme Court justices, all of whom had been appointed by then-former (and later future) Gov. Jerry Brown, and all of whom, under the state’s quirky election laws, had to stand for “retention” that year. Previously, to the best of my knowledge, no state justice had ever faced an electoral challenge to his or her retention, under which process voters simply voted “yes” or “no,” and if “no,” the governor got to choose a successor. But this time around, Republicans and business interests sensed that Brown’s justices were electorally vulnerable and decided to wage an all-out campaign against their retention.
That vulnerability was chiefly that of Rose Bird, whom Brown had appointed as the court’s chief justice in 1977, when she was just 40 years old. Under California law, the high court had to pass on every death sentence decreed by a lower court, and in the years since she’d been appointed, 59 death sentences had come before the court. Bird had voted to overturn all 59 of them.
According to the most recent poll at that time, 83 percent of Californians supported the death penalty. Not surprisingly, a torrent of ads hit the airwaves attacking Bird and the two other Brown appointees—Joe Grodin and Cruz Reynoso—for being squishy soft, cotton-ball soft, on crime (though Grodin and Reynoso had actually upheld some death sentences, their association with Bird was clear evidence of their bias toward squish).
But the campaign contributions flooding into the Dump the Justices campaign told another story. A little under half of them came from the state’s leading Republican donors, who were incensed that the Bird court had upheld the state’s 1981 decennial redistricting, which clearly favored the Democrats. And more than half came from agribusiness.
The reasons for agribusiness’s involvement were clear. Before Brown made Bird chief justice, she’d been the agriculture secretary in his Cabinet, helping steer to enactment the legislation giving farmworkers the right to bargain collectively. Before Brown appointed Grodin to the bench, he’d chaired the state’s Agricultural Labor Relations Committee, which functioned as the NLRB did for non-agricultural workers. And before Brown had appointed Reynoso to the court, he’d headed the nonprofit California Rural Legal Assistance, which provided free legal services to farmworkers. Once on the court, all three joined the fourth Democratic justice, Stanley Mosk (who’d been appointed by Jerry Brown’s father, Pat Brown, when he’d been governor in the early ’60s), in upholding the state’s Agricultural Labor Relations Act, which gave farmworkers the right to form unions and organizers the right to go on farm property to talk to those workers.
In waging the campaign for the Embattled Three (none of whom had any experience in electoral politics nor any expectation that they’d be plunged into it), we sought to make clear how the court had helped Californians, in their roles as consumers and workers and, where appropriate, minorities, when they came up against powerful institutions that were up to no good. It all amounted to rearranging the deck chairs on the Titanic. As the Republican and Big Ag money poured in, the only issue voters heard about was Bird’s 100 percent rejection of death sentences. The three justices got the boot, and I began to consider a career in journalism.
Today, California’s top court has largely swung back toward progressive rulings, even as its federal counterpart increasingly resembles its pre–New Deal social Darwinist predecessor when it comes to economic issues. This week, the bell has tolled for farmworkers; it may yet toll for thee.
