The Most Conservative Court Ever?

An old academic joke has it that "sociology is the study of the obvious."  The same could be said for this article, which reviews some recent studies and concludes that Court Under Roberts is Most Conservative in Decades

The article points out that the Roberts Court is the most conservative since at least 1969, when Chief Justice Burger ushered in a reign of legal conservatism.  In fact, with the exception of the Warren Court from 1953 to 1969, the Supreme Court has been a markedly conservative institution, favoring employers over employees, prosecutors over criminal defendants, corporations over the little guy.  Somewhat frighteningly, the article says that four of the six most conservative justices since 1937 are now sitting on the Court.

This isn't news to those of us who represent employees and unions.  The Court has been unremittingly hostile to employees, and generous to employers.  Curiously, when it comes to "reverse" discrimination, the Court has been more favorable to employees, as last case of  Ricci v. City of New Haven demonstrates.

Unfortunately, the conservative trend is unlikely to change, even though Obama selected Sotomoyor and it looks like Kagan will be seated.  That is because Sotomayor and Kagan are both replacing "liberal" justices.  The biggest difference on the Court has been the selection of Alito, who replaced O'Connor.  I would hardly call O'Connor a liberal.  However, she was often the deciding vote, and due perhaps to her years of experience as a politician, less given to ideological extremes then the junior justice from Pennsylvania.


The right has for years vilified liberal judges, accusing them of "judicial activism" and undermining the will of the people.  In truth, the Roberts Court has been very active, overturning Congress, overturning Supreme Court decisions it doesn't like, and ignoring the concept of stare decisis when convenient.  The irony is that what passes for judicial liberalism these days is actually quite moderate.

There is hope that the Supreme Court will tilt more liberal if Obama gets another pick.  I wouldn't count on it though.  One major difference between the Republicans and Democrats is that when the Republicans pick a Supreme Court judge, they pick one that is, well, conservative and proud of it.  Everyone knew that Roberts and Alito were full-fledged, card-carrying Federalist Society conservatives.  Democrats, on the other hand, make cautious picks of non-ideologues who they think will be confirmed without a fight.  Sotomayor is a middle-of-the-road judge who is very "judicial," but hardly a counter to Scalia and co.  It's hard to tell with Kagan.  She's been a career government-type.  I'm hopeful she will turn out to be reliably liberal, given that her brother is a strong union supporter, according to the Village Voice.  Marc Kagan Article

The mistake the Democrats keep making is that it doesn't matter who they appoint, there will be Republican opposition.  Next time (if there is a next time) Obama should name a flaming liberal or radical to the Supreme Court.  Let's have a real debate in Congress about the nominee and his or her judicial philosophy, rather than the bloodless, passionless play that we currently have, where the nominee tries to kiss everyone's ass to avoid controversy.  And when that pick is rejected, put up another liberal, then another until one is passed.  Unless we do, then the Court will creep continually to the right, like the rest of the federal judiciary.

Profits Up, Workers Not So Much

The New York Times reports that many companies are increasing their bottom lines -- but aren't going to be recalling laid off workers anytime soon. Companies Find Surging Profits in Deeper Cuts.  That's because companies know that they can get away with making people work more without paying more.    Exhibit A is Harley Davidson, where the company reported a 71 million dollar profit last quarter, triple from the year before.  Despite the profit, none of the 2,000 jobs cut last year are coming back.

Harley perfected a method of collective bargaining that companies have been using since the recession started:  threaten to move jobs to other states, or countries, unless workers agree to draconian wage cuts, benefit cuts, and work rules.  In this climate of fear, many workers agreed.  Employees aren't stupid though; when they see reports of record profits at a time when they have been asked to sacrifice, they are resentful and unhappy.

There is no doubt that many companies have had to restructure and have legitimately reined in labor costs in order to survive.  There are many more, however, that have used the recession to get what they always wanted but couldn't when the economy was better.  But Henry Ford recognized long ago that unless people have money, they can't buy a company's products.  When other companies follow Harley's lead and layoff workers in order to maximize profits, they are creating an America in which people can't afford to buy an expensive motorcycle.  And without more consumption, the economy will continue to lag.

Big Brother Reads Your Facebook Posts

Who isn't on Facebook these days?  The site has something like 500 million users, and is growing rapidly.  There have been 4 billion tweets posted on Twitter.  Posting a picture of yourself on Myspace or Facebook with a drink and tabbing it "Drunken Pirate" might make your friends laugh.  But it could also get you fired, as this Lancaster teacher found out.  Drunken pirate.  Employers are increasingly searching the web to monitor employee activities while they are off duty, and firing them if they don't like the activity.  As Molly DiBianca notes in her blog, one woman was fired for her anonymous sex blog after a supervisor searched the internet and found an unrelated Twitter account that revealed her name.  Sex blogger fired

You might think you are safe using Facebook -- after all, it has privacy settings so only your "friends" can see what you post.  But who knows what those friends will do with the information?  I had an arbitration once where the employer brought in a bunch of employee posts that her workplace colleague and Facebook "friend" had given the employer.


Even if your friends don't rat you out, employers can be very aggressive in litigation, and may subpoena all Facebook postings, and also subpoena your friends to get to your postings.  Management lawyer Eric B. Mayer gleefully advises employers in this blog post all the different ways to get to your private information, from subpoenas to figuring out who your FB friends are and seeing if they are work colleagues, to asking for sanctions for spoilation.  Mayer post here.

Forewarned is forearmed.  The basic rule for FB, as well as all internet activity is not to put anything out there that you wouldn't want your grandmother to see.  Big brother is watching.

War on the Poor

With the seating of Carte Goodwin, West Virginia's new senator, and crossover Republicans Collins and Snowe, the Senate finally passed a bill extending unemployment benefits.  What is remarkable to me is not that the despicable Republican minority would rather see people starve then pass legislation that makes social and economic sense -- that is to be expected.  What is remarkable is the complacency with which we have accepted an unemployment rate of 9.5%.  And this figure does not measure underemployed, distressed, and underemployed Americans.  That figure has been estimated as 20% of the workforce.


At the same time unemployment has been rising, so have corporate profits, hence the term "jobless recovery."  Meanwhile, the gap between the wealthiest Americans and everyone else continues to grow; one recent study shows that the gap in after-tax income between the richest 1 percent of Americans and everyone else is the highest it's been in 80 years, with the gap tripling in the past three decades.  CBPP study.  The study points out that one recent reason for the increase is that the Bush tax cuts benefited the top 1%, with the top earners getting the lion's share of the tax cut benefits.

Amazingly, Republicans are pushing for extending the Bush tax cuts at the same time they are pushing against extending unemployment insurance.  It's hard to say how this is anything but a declaration of class warfare:  keep the cuts that benefit the wealthiest Americans, and screw those who need help the most.  Even the venerable Alan Greenspan thinks that the Bush tax cuts should lapse, and not be extended.  Greenspan comments.  Unlike the tax cuts, extending unemployment benefits is generally accepted as a stimulus to the economy.  The cynic in me says that the only reason the Republicans are opposed to something that will ease suffering and is good for the economy is that they want to keep unemployment high through November to help their electoral chances.

Our bland acceptance of high unemployment and underemployment, the growing gap between rich and everyone else, and the shrinking middle class is exactly the thing that will prevent any meaningful change in our social policies.  The times of progressive policy in this country has come during times of social unease, rioting in the streets, and revolution in the air.  Think of the 30s, when there were sit-down strikes, violent encounters with the police, and active Communist organizers.  Or the 60s, when the streets were on fire and millions marched on Washington.  Major legislation was passed in those decades that benefited all Americans.  Compare that to now, when people are mostly concerned over the latest dance star, sports, and which C-list celebrity is getting kicked off which island.  Until we turn our attention elsewhere, it is likely that the status quo will continue.

Blue Collar Glory: Matthew Crawford's "Shop Class as Shopcraft."

As a lawyer representing labor unions and working people, I am often struck by the fact that many of my clients are better off than some lawyers and professionals I know.  Some workers I represent make close to six figures (albeit by working 80 hour weeks and collecting overtime), and some are able to retire at age 55 with a guaranteed pension.  In contrast, most lawyers and professionals I know are still paying off student loans, and there is no defined benefit pension in their  futures.  Some of these same workers are happier in their work lives as well.  Unlike some white collar workers, who are salaried workaholics, these folks make things and fix things from 9-5, then at the end of the day they are done -- free to have a beer and forget about work.  There is always another project for some professionals, and every lawyer I know has at some point woken up in the middle of the night wondering if he screwed something up -- a filing deadline, an argument missed in a brief.

Matthew B. Crawford explores some of these issues in his brilliant little book "Shop Class as Soulcraft," which recently came out in paperback.  Crawford's basic argument is that blue collar work in which people make things has been devalued, and white collar work glorified, as optimists proclaim that "knowledge workers" are the way of the future.  Yet as Crawford points out, many white collar jobs are soul-destroying endeavors in which nothing is produced, and there is no real way to measure productivity.  Hence the rise of a managerial class whose job it is to act as coaches and spout corporate-speak platitudes, create "teams" so no one is individually responsible, and build corporate "brands."  Since knowledge workers aren't really producing tangible things, Crawford notes, the evaluation of what each person contributes is vague and opaque, with the consequence that these workers are judged subjectively.

Crawford contrasts these workers with blue collar folks like motorcycle mechanics or carpenters whose work is objectively measured -- a door is either level or it isn't; valves are either set right or they aren't.  In Crawford's tale, pride of craftsmanship equalizes worker and boss in a certain way because a craftsman has something objective by which to judge his contribution to a project.  The boss respects a worker who does the job right, and a worker has pride of ownership.

Crawford has a Ph.D. and started out at a think tank, only to start his own motorcycle repair shop.  He beautifully details how he rebuilt car engines as a kid, and how he fixes motorcycles and fabricates  motorcycle parts now.  It's enough to make me wish I still had my 1966 Volkswagen bus and a copy of John Muir's "How to Keep Your Volkswagen Alive" manual.

Crawford is on to something here, but the tale is too simple.  Yes, too many people go to college who might be better served going out and learning a trade.  And yes, if you make something you know if you've done it right in an objective sense.  But not everyone can be a motorcycle mechanic at a boutique shop, and not everyone can take his knowledge and become a craftsman.  Most people who go to trade school end up not owning their own little businesses but working for corporations where they are, alas, subject to the petty prejudices of their supervisors, not to mention the whims of superstar CEOs who want to build up the bottom line at the expense of workers.  Some of the saddest cases I run into are skilled workers who, at age 40 or 45 or 50, have been laid off and have no real prospect of every reaching the level of wages and benefits they had when they were laid off. 

Take Harley Davidson, the iconic motorcycle manufacturer.  Harley used to employ about 2,200 workers at it York, PA plant.  Harley essentially had two plants at York, a modern assembly line that cranked out new bikes, and an older "legacy" plant.  At the legacy plant some assembly work was done.  However, the legacy plant also employed highly skilled workers who made custom parts, fabricated parts for old Harleys, and could make anything that Harley needed to make.  If someone needed a part for a 1948 Panhead and it couldn't be found, the legacy plant could make it.  The workers in the legacy plant were highly skilled fabricators, mechanics, and craftsmen in every sense of the word.   

In 2009 a new CEO came in, who decided that Harley wasn't profitable enough.  Even though the union at Harley demonstrated that Harley could save money by keeping the legacy plant open, the CEO closed down the legacy plant to concentrate on new bikes.  Some 400 workers took buyouts, and another 500 have been laid off, with another 500-600 layoffs targeted.  The laid off workers face the prospect of a grim economy, with faint likelihood of making the kind of money and benefits they made at Harley.  These folks have skills, but there isn't much demand for their skills in an America that doesn't make things anymore.

Crawford's theory is nice, and I don't disagree with him.  However, Crawford tends to glorify blue collar work and denigrate white collar work, when the reality is more complex.  His argument, that pride of craft and teaching people trades is better than sending everyone to college makes some sense.  However, in some ways his theory is the equivalent of those on the right who glorify "entrepreneurs" and think that every economic problem can be solved by creating small businesses.  Nonetheless, the book is excellent, well-written, and espouses a view that needs to be reckoned with.