Corporate Accountability

The Supreme Court’s War on Working People Just Got a Little Worse

The decision in Starbucks Corporation v. McKinney is part of a long tradition of the Supreme Court claiming the power of working people for itself.

In the last three years, over 10,000 Starbucks workers across over 400 locations have unionized. In doing so, small but mighty groups of hourly workers across the country have taken on a company with a net worth of $90.84 billion, a former CEO who almost became Secretary of Labor, and more than 100 highly paid corporate lawyers tasked with keeping workers from claiming their power. Unfortunately, these workers have also had to take on the Supreme Court—an entity that might not be on Starbucks’s payroll, but is just as dedicated to protecting the company’s bottom line.

On Martin Luther King Jr. Day in 2022, a group of employees at a Starbucks location in Memphis launched a union organizing effort, the first at any Starbucks location in the city. Within weeks, seven of them had been fired. They weren’t alone; Starbucks Workers United says that in 2022 alone, over 100 union leaders were fired at stores across the country.

In theory, you can’t be fired for trying to organize your workplace. That’s been true since 1935, when Congress passed the National Labor Relations Act to ensure the right of private-sector workers to unionize, bargain, strike, and otherwise engage in collective action. But what companies like Starbucks know is that, even if they eventually get caught breaking the law, firing union organizers can be enough to squash a nascent organizing campaign. Sure, the company might eventually be forced to pay a fine, or—God forbid!—hang up a sign in the break room detailing employees’ basic workplace organizing rights, but they see that as a small price to pay in exchange for avoiding a successful unionization campaign.

Fortunately, in the case of the group that came to be known as the Memphis Seven, the federal government moved quickly. The National Labor Relations Board), the government agency responsible for enforcing the law of union organizing, swiftly filed charges against Starbucks, and got a court order requiring Starbucks to reinstate the seven fired employees. The swift intervention allowed the organizing effort to prevail; in June 2022, that store became the first unionized Starbucks in Memphis.

Unfortunately, that isn’t the end of the story, because Starbucks appealed all the way to the Supreme Court. And last week in Starbucks Corporation v. McKinney, the Court, in an opinion written by Justice Clarence Thomas, handed a critical victory to Starbucks and its ongoing union-busting efforts—and undermining a key tool used to defend workers’ right to organize.

The basic question in the case was about how lower courts decide whether to issue emergency orders to reinstate the fired employees (like the one the NLRB sought and received in the Starbucks case). Should the courts apply the same analysis that they do in run-of-the-mill cases in which a party requests an injunction? Or, like the lower courts did in this case, should they take into consideration Congress’s decision to place the bulk of power to enforce the law of union organizing in the hands of the NLRB, not the federal courts?

To understand the significance of this case, it’s important to know that courts have a long history of interfering in labor organizing efforts, usually to the detriment of workers. That explains much of why Congress passed the NLRA, which delegated most enforcement authority to the NLRB, and limited the role of the courts to enforcing the Board’s decisions. As part of that process, Congress gave the Board the authority to seek injunctions when an employer commits an unfair labor practice and the harm is significant enough that the situation needs to be remedied immediately. (These are known as 10(j) injunctions for the subsection of the NLRA that provides for their issuance.) For example, if an organizing effort would be irreparably harmed by the illegal firings of organizers, the Board has the ability to ask courts to move quickly to get the workers back on the job.

In the rare case that the Board decides to pursue this type of injunction—something that happens in less than one-tenth of 1 percent of instances in which an employer commits an unfair labor practice—that decision goes to a district court for review. The court then uses a four-step test to determine whether to grant the injunction. In McKinney, Justice Ketanji Brown Jackson argued that judges evaluating these requests should give significant deference to the Board’s recommendation, “in deference to Congress’s choices as codified in the NLRA.”

Unfortunately, Jackson wrote in dissent, and only for herself. The majority—including Democratic appointees Elena Kagan and Sonia Sotomayor—decided that 10(j) injunctions should be treated just like any other injunction, which, in the case of unfair labor practices, makes it more likely that the employers, not workers, will win. In doing so, the Court decided that the (democratically created and accountable) NLRB should have less power, and (unelected, unaccountable) federal judges should have more.

When the story of this term is written in a few weeks, Starbucks v. McKinney is unlikely to receive as much attention as rulings in the abortion pill case, the bump stock ban, or the Trump immunity cases. But it is a powerful example of two key themes of the Supreme Court’s jurisprudence. First, the Supreme Court is not on the side of working people, and it never will be. Second, the Supreme Court is working at every turn to hoard more power for the courts—and this power-hoarding happens at the expense of a functioning multiracial democracy.

In a new report from the People’s Parity Project, Jenny Hunter shows that workers getting screwed by the Supreme Court isn’t the exception—it’s the rule. With the exception of one very brief moment during the New Deal era, federal courts have weakened congressionally enacted protections for worker organizing, expanded employers’ ability to use coercive tools to strip workers’ rights, attacked public sector unions, and impeded unions’ ability to organize seasonal workers. Whether with a wrecking ball or a chisel, the Supreme Court is coming for workers and their ability to build lives with dignity.

Whatever their reasons, Sotomayor’s and Kagan’s decisions not to join Jackson’s dissent demonstrates that putting power in the hands of justices, no matter which president appointed them, is a dangerous exercise. Research from the Constitutional Accountability Center shows that the Court sides with corporations about 70 percent of the time, and that in the most recent term, every single justice on the Court—liberals and conservatives— sided with corporate America at least half the time. This reflects, in part, the fact that Democratic presidents and senators haven’t made economic justice a central issue in judicial nominations and confirmations. Far too few judges from either political party come from working-class backgrounds or have experience fighting for working people as lawyers.

An anti-worker judiciary might not be such a monumental problem if the federal courts played an appropriately sized role in our democracy. Jackson’s dissent shows what that world might look like: Courts would have a role to play in enforcing laws as enacted by Congress, but would not have the ability to reassign power from the legislative and executive branches to the judiciary.

Instead, we have a system of rule-by-judge, in which life-tenured judges need only a moment to undo hard-fought wins for working people. This means that workers have to win not only in the workplace and in the halls of Congress, but in front of elite, pro-corporate judges predisposed to side against them. Until the rest of the federal judiciary joins Jackson in rejecting the ongoing accumulation of power by the courts, for the courts—or until Congress forces the courts into their rightful role in a democracy—corporations will continue to win, and workers will continue to lose.

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