So I’ve been asking myself about the implications the appointment of Brett Kavanaugh to the U.S. Supreme Court may have for our work at NWJP and for our allies.
While one can desperately hope that Kavanaugh may come to the Court chastened by his experience, and that he and others, like John Roberts, may feel the need to move slowly at first, for the sake of the Court’s credibility, this is most likely just whistling past the graveyard. Sooner or later—and more likely sooner—we should expect a gale force storm blowing directly into our faces on federal issues, including employment and immigration, specifically, but also on related issues such as civil rights, access to the courts, and other social and political rights.
How do we continue to press forward into this wind?
A piece of the answer is suggested by a sailing metaphor. At times, it might be possible to tack into the wind, that is, to use the force of the wind in one’s face to be able to zig zag in a forward direction. If we can figure out how to use the new court’s ideology to gain ground, this may be appropriate. (E.g., can we use the court’s antipathy to federal regulation of the states to protect worker-protective statutes from federal review?) And if the wind becomes overwhelming we may need at least temporarily to trim our sails and ride out the storm, hopefully with minimal damage. The trick will be having the wisdom to match these tactics to a given situation, without abandoning our most vulnerable clients and our zeal for justice.
The elections of 2018 and 2020 may set up new federal opportunities for legislation, and we might rethink the possibilities of effective administrative enforcement.
But I think that our principal response needs to be to re-envision how we approach our work.
For almost sixty years, a workers’ lawyer’s task has largely involved bringing social justice arguments before a federal court. This era may be waning. In Oregon, however, we are blessed, even in remote parts of the state, with a judiciary that has very largely been appointed by progressive, democratic governors. Rather than seeking to avoid state courts, we must learn to embrace them. And we should structure litigation to avoid federal review, if possible. A corollary is that we must focus even more intensely on making sure that local labor standards are as good as, or better than, we’ve come to expect from federal law.
And of course, helping our clients find means to resolve disputes through their own self-advocacy and collective power outside of the court system becomes even more important than ever.
The way forward will be difficult and challenging. It will require us, as worker advocates, to grow and adapt in ways that push us out of our comfort zone. This is a challenge we cannot avoid, and must master.