The Supreme Court is reshaping, and weakening, labor rights

This op-ed has been corrected and updated to reflect that the Supreme Court in June overturned their landmark Chevron USA v. Natural Resources Defense Council decision from 1984. 

While Kamala Harris, if elected, must ensure the rights of organized labor, the Supreme Court’s influence on labor rights may be equally, if not more, significant. Since the election of Trump and especially in the past year, the high court has begun to dismantle decades of precedent that have protected labor.

With cases involving SpaceX, Starbucks and the National Marine Fishing Service, the last which led to the overturning of the so-called “Chevron doctrine,” the Supreme Court is weakening the National Labor Relations Board’s regulatory mechanisms, while bolstering its own role in interpreting policy.

On Jan. 3, the NLRB charged SpaceX with illegally firing nine employees, conducting interrogations and surveilling workers. SpaceX responded with a lawsuit against the constitutionality of the agency’s administrative structure, and the capacity of agencies like the NLRB to adjudicate. The company specifically argues that the board’s role as judge and jury infringes upon the Constitution's separation of powers clauses.

The NLRB scheduled a hearing on March 5 in Los Angeles, but Elon Musk filed his lawsuit in Texas, hoping for a more favorable ruling from a Trump-appointed judge rather than likely landing a more progressive judge in California.

Since SpaceX filed suit, more and more businesses are issuing similar complaints against the regulatory structures. Trader Joe’s, for example, based its complaints on similar grounds after a Jan. 16 hearing before the NLRB for illegal union-busting.

Such claims threaten to overturn the precedent from New Deal-era legislation which normalized Congress delineating these administrative structures. For decades, these complaints would have been ignored, but now are granted attention due to the court’s recent shift to the right. University of California Berkeley Law Professor Catherine Fisk notes, “The Supreme Court has given lawyers reason to think that they might be able to invalidate part or all of these statutes as being unconstitutional.”

In a significant ruling June 13, the Supreme Court weakened the NLRB’s authority to seek injunctions by requiring the use of a stricter traditional four-factor test for preliminary injunctions under Section 10(j) of the National Labor Relations Act.

This decision arose from the Starbucks Corp. v. McKinney case, which resulted from Starbucks firing several employees for announcing plans to establish a union in Memphis in 2020. The employees took their case to the NLRB, arguing Starbucks illegally fired them and restricted their right to organize.

The court sided with Starbucks and determined that the NLRB must demonstrate a likelihood of success on the merits and other factors, rather than relying on a more lenient two-part test previously established by the U.S Sixth Circuit Court of Appeals. In other words, the Supreme Court has made it more difficult for the NLRB to receive injunctions from district judges required to start investigations.

The ruling complicates the NLRB’s ability to act swiftly against employers accused of unfair labor practices, potentially hindering timely investigations and allowing employers to retaliate against organizing workers without immediate legal repercussions.

On June 13, the Supreme Court overturned the Chevron doctrine, nullifying a precedent that granted agencies primary authority to interpret ambiguous statutes. Established following the court's decision in the 1984 Chevron v. Natural Resources Defense Council case, the doctrine allowed agencies to make technical decisions within their regulatory domains, given their expertise.

The June decision arose from a challenge by fishing companies of a National Marine Fishing Service regulation mandating that herring fishers cover the cost of onboard observers. The U.S Court of Appeals for the District of Columbia Circuit and the U.S Court of Appeals for the First Circuit applied the Chevron doctrine and upheld the rule. The fishing companies argued that Chevron improperly diminished the judiciary's role in interpreting statutes.

Roman Martinez, representing one group of fishing vessels, argued that the Chevron doctrine undermines the judiciary's responsibility to clarify the law and contradicts federal laws that require courts to independently assess legal issues.

He pointed out that under Chevron, even if all nine justices agree that the fishing companies’ interpretation of federal fishing law is superior to that of the NMFS, the court would still have to defer to the agency's interpretation as long as it is deemed reasonable.

Critics of Chevron argue that it undermined judicial responsibility, while proponents, including U.S. Solicitor General Elizabeth Prelogar, defend it as crucial for maintaining agency expertise in interpreting complex regulations.

The three liberal associate justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — also expressed their support for the doctrine. Justice Kagan advocated that particular agencies have more technical expertise than courts in deciding the best interpretation of policy. She warned overturning Chevron “will cause a massive shock to the legal system.”

Justice Jackson put forth similar sentiments, arguing that the doctrine is essential for the separation of powers, and would lead to an increased judicial role in policy decisions.

Chief Justice John Roberts, in his majority opinion, argued Chevron contradicted the Administrative Procedure Act, a federal law which gives the courts precedent over agencies’ interpretation of statutes. He wrote, “it thus remains the responsibility of the court to decide whether the law means what the agency says.”

Martinez, Roberts, and other conservative justices argued overturning Chevron would have a limited effect. Martinez specifically claimed cases formerly resolved through Chevron would remain closed. Prelogar rebuked that argument, saying rulings “would be open to challenge” and “litigants will come out of the woodwork.”

Associate Justice Neil Gorsuch, in a concurring opinion, declared, “[t]oday, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s founding.”

The Chevron decision has implications for the Starbucks and SpaceX cases and other labor cases, as courts will now be more empowered to interpret laws independently, rather than deferring to agencies' expertise. This could make it harder for the NLRB to act decisively on labor issues, potentially allowing corporations to challenge agency rulings and reduce the protections available to workers in union disputes. Indeed, with the heightened scrutiny on agency actions following the Chevron overturn, businesses may feel encouraged to legally challenge regulatory bodies in pursuit of more favorable interpretations from the judiciary.

Trump, if elected, has the chance to further weaken the rights of organized labor and limit the functionality of agencies like the NLRB in protecting those rights. He could flood the judicial system with even more anti-labor and anti-bureaucratic judges who are emboldened with a crippled NLRB.

Labor policy reform has taken a backseat in the Democratic agenda, and Harris has offered little hope in galvanizing the working class. Yet Harris’ election and a Democratic Congress would offer the best chance to reconfirm Biden appointee Jennifer Abruzzo to continue her aggressive leadership as NLRB general counsel.

Lacking both of these possibilities, decades of New Deal-era legislation and protections for labor will continue to crumble, all while the Supreme Court gains more and more power in determining the rights of labor and the effectiveness of bureaucracy.

Carter Myers-Brown is a New York-based essayist who writes about labor policy, the environment and social movements.

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