For more on Justice Ginsburg, watch the documentary “RBG” on CNN Monday, September 3 at 9 p.m. ET/PT.
For Supreme Court Justice Ruth Bader Ginsburg, the gloves are off and the collar is on.
As she did on Monday in an important employee wage dispute, Ginsburg dons her classic dissenting collar – black with silver crystal accents – over her robe when she is about to take the unusual step of protesting a majority decision from the bench.
“Nothing compels the destructive result the court reaches today,” she said, adding in her written opinion that the majority was “egregiously wrong,” retrenching on 80 years of federal labor law that sought “to place employers and employees on more equal footing.”
Her forceful tone Monday, combined with earlier cases this session and the nature of controversies yet to be resolved, suggest Ginsburg and the three other liberals may increasingly be in the minority as the court nears the end of its annual session in late June – and more likely to speak out.
At age 85, Ginsburg is the eldest of the nine sitting justices. A 1993 appointee of Democratic President Bill Clinton and the second woman named to the bench, Ginsburg has achieved an icon status, particularly among young lawyers. Her dissents have enhanced her prominence. The “Notorious RBG” meme, a play on the rapper Notorious B.I.G.,” began as fans responded to her dissenting opinion in a case in which the conservative majority curtailed the reach of the federal Voting Rights Act.
After operating with only eight justices for parts of 2016 and 2017, following Antonin Scalia’s death, the Supreme Court is in its first full session with Justice Neil Gorsuch, President Donald Trump’s appointee. The bench appears to have moved beyond the interim pattern of incremental steps and compromise and returned to sharp 5-4 ideological divisions, led by Chief Justice John Roberts on the right and Ginsburg on the left.
That divide, as well as Ginsburg’s continued legacy, will be tested in upcoming weeks with pending cases.
Among them is a major labor dispute that could determine the financial fate of public sector unions. The court is considering whether to reverse a four-decade precedent that permits unions to collect certain “fair share” fees from non-members to cover the cost of representing them in collective bargaining.
Also pending is a case pitting gay rights against religious interests, brought by a Christian baker in Colorado who refused to make a wedding cake for two gay men, and separate voting-district disputes from Wisconsin and Maryland testing the constitutionality of partisan gerrymanders.
In Monday’s case, decided by a bitter 5-4 vote, the conservative majority ruled that employers may forbid employees from banding together to fight wage and other workplace issues covered by arbitration agreements. The court said a federal arbitration statute overrides federal labor law intended to protect workers’ bargaining power.
Speaking for the four liberal dissenters, Ginsburg said the decision threatens to return the country to a time in the late 19th century and early 20th when workers were forced to take jobs strictly on the boss’s terms and “yellow dog” contracts, forbidding employees from joining labor unions, were common.
The employees who had brought Monday’s case claimed they had been underpaid in violation of the Fair Labor Standards and wanted to join in a class-action lawsuit in federal court. The Supreme Court majority agreed with their employers that the arbitration contracts they had signed prohibited any collective proceedings.
Ginsburg declared the agreements “arm-twisted, take-it-or-leave-it contracts.” She noted that the cost of a lawsuit dissuades most workers from seeking to redress a grievance on their own and emphasized the “strength in numbers.”
She said federal laws dating to the 1930s protect workers’ rights to band together to confront employers about working conditions. “Federal labor law does not countenance such isolation of employees,” she insisted.
So dire was her warning about a return to pre-New Deal conditions that Justice Gorsuch, who wrote for the majority, spent nearly half of his bench announcement on Monday morning responding to the dissent. Of Ginsburg’s claim that the majority decision resurrected the long-dead “yellow dog contract,” Gorsuch said, “This is a false alarm.”
He devoted five pages of his 25-page opinion addressing Ginsburg’s dissenting statement.
Gorsuch said the majority properly interpreted the text of arbitration law. He cited past cases favoring arbitration in commercial disputes.
Liberals had insisted the labor context was different. “As I see it,” Ginsburg added, “in relatively recent years, the court’s Arbitration Act decisions have taken many wrong turns. Yet, even accepting the court’s decisions are they are, nothing compels the destructive result the court reaches today.” She predicted the decision would lead to the underenforcement of federal and state labor laws.
Gorsuch acknowledged in his written opinion that because individual workers might not sue on their own, class actions can help enforce federal and state wage laws. But he added, quoting Ginsburg in a 2010 case, “it’s also well known that they can unfairly ‘place pressure on the defendant to settle even unmeritorious claims.’”
Joining Gorsuch in Monday’s Epic Systems Corp. v. Lewis were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. Dissenting with Ginsburg were Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
The nine divided along similar lines last month when the court disallowed overtime pay for certain automobile workers. Ginsburg wrote for dissenters in that case, Encino Motorcars v. Navarro, that the conservative majority was undermining worker protections from the 1930 New Deal era “without even acknowledging that it unsettles more than a half century of our precedent.”
The same split could emerge in what is likely the most important labor case of the term, testing the constitutionality of state laws that require public-sector employees who decline to join a union nonetheless to pay fees to cover the cost of collective bargaining.
In past cases, conservative justices have signaled that they might be ready to rule for the challengers who say being forced to pay any fees infringes on their free speech rights.
Advocates for such “fair share” payments contend a high court decision letting employees benefit from representation without paying would seriously cripple labor unions in America.