INAUGURAL JUNKIE: Justice Breyer is Sick of this Shit

Naturally, I’m so late in finally getting to this that nearly all of the stories and topics I’m about to present are almost two weeks old. That doesn’t mean, however, that you’ve heard of them, and they’re not the kind of stories that have such a short shelf life that they’re no longer important or relevant.

In any case, after about a year (with very limited exceptions), we’re finally making our return to the public arena.

There’s simply too much work to be done for this to be avoided.

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To many, my feelings on unions are very well-known: I think there should be way more of them, I think they should have more power, and I think they should be more aggressive. Obviously, this is in direct conflict with the “mainstream” prevailing neoliberal form of capitalism we currently have, but even many within my own class (somewhere between working class and middle-middle) will lob criticism my way. The most common objections I hear are that unions are corrupt and that they may have done good things in the past like the winning of the eight-hour workday and the weekend, “we just don’t really need them anymore.”

I could spend hours effectively defending my position against these weak-kneed suggestions, but (you can breathe your sigh of relief now) I’m not going to do that, here. Instead, let me briefly present this issue from the plainest, least “political”, most wizardly perspective available to me: a people who lack the right to come together and demand living conditions according to their interest lack both freedom and democracy. This is especially true as pertains to the sectors of society with the least power, and it is especially true in an era such as ours in which the majority must sell their labor for wages in order to earn a living. The people who pay wages will always possess power disproportionately higher than the individuals who receive the wages, and if the wage-earners are not permitted to stand up for themselves, the result is perhaps the worst form of tyranny.

“A people who lack the right to come together and demand living conditions according to their interest lack both freedom and democracy.”

In other words, collective bargaining is a prerequisite for liberty itself. I am a friend to all manner of collective bargaining, but despite being well past their prime of power and influence, unions are the biggest vehicle for collective bargaining available to us today. There is some evidence to suggest the labor movement may slowly be evolving to include collective action undertaken by nonunion employees – the fast food strikes and Black Friday Walmart protests/strikes come to mind. I am very much a friend to these movements. Unions are still, nevertheless, comprise the vast majority of the vestiges of what we used to call labor.

Much as I long for sit-down strikes and general strikes and white-collar organization and workplace seizures, the reality is that much of the dealmaking undertaken by modern unions is decidedly unsexy. The question before the Supreme Court in UNITE HERE v Mulhall, involves a deal freely made between a Florida local of a hospitality union – UNITE HERE – and a casino company named Mardi Gras Gaming. Mardi Gras Gaming agreed to not fight UNITE HERE’s attempts to unionize employees, to allow the union to come onto their property to talk to workers, and to provide the union with a list of employees. In exchange, the union agreed not to strike, and pledged its resources toward lobbying the Florida government in favor of pro-gambling legislation which could lead to Mardi Gras’ expansion and the hiring of more workers.

Not a bad deal, right? Nothing too extreme in there. Like I said, very unsexy. But, as always, you can never please everyone, and some jerk named Mulhall who doesn’t like unions and didn’t want to join one sued, saying that the concessions the company gave to the union violated section 302 of the National Labor Relations Act, which prohibits employers from giving “things of value” to a union. It’s an anti-corruption statute designed to ban corporations from effectively bribing unions to act in a manner contrary to the best interests of the workers they are supposed to be representing.

On and on the litigation went, until it found it’s way before the US Supreme Court for oral arguments (transcript) back on the 13th. If the Supreme Court agrees with the most recent ruling of the 11th Circuit, this new interpretation of section 302 will effectively outlaw common agreements between unions and employers, dealing a serious blow to the free right of collective bargaining.

Now, I don’t know if you’ve ever decided to read one of these things for fun. Probably not – probably, that sounds crazy to you. Well, I have, and trust me when I say it’s fun. It’s like a cross between a freshman writing major’s second or third play and a Socratic dialogue. It’s impossible to read one of these transcripts and come away without thinking about how much fun it must be to be on the Supreme Court for life. The structure of the proceedings are simple. Lawyers for both parties, who have already filed detailed briefs outlining their legal arguments, along with other lawyers who represent various other interests (like the government itself) and are appearing on behalf of one side or the other, have to verbally defend their arguments while the justices interrupt them – and sometimes each other – with question after question after question. The justices can ask or talk about whatever the hell they want. Sometimes it’s dry, but I’d say most cases have at least one or two gems somewhere in there if you manage to make it to the end. This case is no different.

Justice Stephen Breyer
Justice Stephen Breyer

The guy representing UNITE HERE goes first, followed by the US government attorney, who is there on the union’s side. The early discussion is a little irritating, focusing on the definition and nature of property and value to shed light on whether “neutrality” and “lists of names” are valuable assets that cannot rightfully be given by an employer. I hate discussions like this – I find legal arguments like “money is speech” and “abstract things are property” to be severely problematic, emblematic of some of the worst cancers upon our society. Sixteen pages in, they’re still going on about it.

When it’s the government’s turn, Chief Justice Roberts asks probing questions about whether “card check” – the procedure by which employees declare whether or not they favor unionization openly instead of by secret ballot – is coercive. That’s predictable, coming from him. The government’s arguments end with a fun little non-sequitur from Justice Scalia: “WHAT ABOUT THE SLOT MACHINES?!” he exclaims wildly. No, I made up the characterization of his tone – but he does ask the question, which is not really relevant to the legal arguments being made, out of nowhere.

It is during the arguments of William Messenger, there representing that buzzkill Mulhall, that we have our highlight. 34 pages into this thing, Justice Breyer, who hasn’t said very much so far, has apparently had enough of this whole charade. He cuts Messenger off mid-sentence. “It’s not covering. As I understand the argument, it goes back to, like, Jurisprudence 1.” In other words, this shit is such common sense that we shouldn’t even be wasting our time with it. He references common legal exceptions: if a park has a ban on vehicles within its borders, that ban does not apply to a Jeep that’s part of a war memorial. If Bologna, Italy, in the eighth century (yeah, eighth century) has an ordinance against spilling blood in the streets, that doesn’t apply to a barber who accidentally cuts a customer. “You don’t have to get into a metaphysical argument about things of value,” he says, and I was practically shouting my gratitude after my earlier annoyance.

“Lists, access, promises to stay neutral are central to many aspects of organizing campaigns,” he says, and therefore are no more illegal than the Jeep in the park or the barber’s hand-slip. He let’s Messenger get a few words in here or there but mostly doesn’t want to hear it. “These kinds of things are organizing things, and therefore, they’re outside the scope.” Basically, he’s saying that the law that lays out rules for employer-union relations doesn’t outlaw employer-union relations and to even argue as much is bullshit.

Supreme Court Oral Arguments should never be used to predict the outcome of a case. Often, justices will be particularly harsh on the side for whom they end up deciding in favor, and vice versa. But for the sake of all of our freedom and the potential that life be just a little less bad, here’s hoping that the ruling (not due until spring) comes down on the side of the people, not to mention that of common sense.

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The year of Jubilee, when all debts were entirely forgiven altogether!
The year of Jubilee, when all debts were entirely forgiven altogether!


Want to read about something that’s not a bummer? An offshoot of the Occupy movement, the Rolling Jubilee is a group that raises large sums of money and then randomly pays off people’s debts, releasing them completely with no strings attached.

More of that, please.


Actually, this next bit is not so bad, either. Ever heard of the Monroe Doctrine? At the very least, it should bring back dusty memories of some dry and context-free account provided by public high school history class. Put simply, it was when, 200 years or so ago, President Monroe declared that the United States basically owns all of Central and South America, so everybody else should just back the fuck off. That’s been – brutally, cruelly, inexcusably, oppressively – our policy ever since.

That’s why it’s remarkable that a United States Secretary of State, speaking before the Organization of American States, actually said, “The era of the Monroe Doctrine is over.” No joke. And no, you don’t need to tell me that words are a far cry from meaningful action and that even if we start treating the nations of Latin America in a more equitable manner, we are still killing people with robots in the sky and perpetuating all sorts of further injustice around the world. I get that. But mere words are still worth mentioning and pondering when they are words of justice and unique words that have never been spoken before. Probably it’s a lie, but props to Kerry for at least acknowledging that it’s a problem.

It’s not directly related, but along the same kind of lines, Florida Congressman Alan Grayson reminds us that we didn’t attack Syria a couple months back, which is undeniably great. Despite the fact that it even seemed like Obama and his crew wanted to attack, despite the fact that an argument can be made that an attack was only thwarted by the (perhaps cynical) machinations of Russia, the important thing is that we didn’t attack. There are people who are alive right now who would be dead. Alan Grayson is pretty happy about that, and so am I.

(This is, of course, neglecting to mention that other gigantic diplomatic breakthrough this past weekend, but I’m going to save that one. Suffice it to say that I’m thrilled and the world is a better place, if only a little bit.)


Lastly, the United Methodist Church had a chance to be cool and blew it in spectacular fashion. It’s often wise to set low expectations for tolerance among Christians, but the Methodist Church belongs to the “Mainline Protestant” tradition, which includes very open and liberal denominations like the UCC and the Episcopals. They’re not bound to the judgmental spirit of much of the Evangelical tradition, but in this instance they have chosen to cling to that kind of reactionary conservatism anyway.

Reverend Frank Schaefer of Pennsylvania went rogue in order to officiate the wedding of his son – his gay son – and they’re going to essentially defrock him for it. Fuck them.

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