Conservative Supreme Court Activism Risks Backlash

By Michael Scimone and Jahan Sagafi (July 16, 2018, 1:23 PM EDT) -- As the Senate considers Judge Brett Kavanaugh's nomination to the U.S. Supreme Court, including his potential impact on legal protections for workers, it is useful to reflect on the court's three 5-4 anti-worker decisions of the last term. The court's decisions in Janus v. AFSCME, Lewis v. Epic Systems and Encino Motorcars v. Navarro, each of which broke with norms of judicial restraint, could not have happened without — and in many ways were foreordained by — the norm-shattering decision of Senate Majority Leader Mitch McConnell, R-Ky., to kill President Barack Obama's nomination of Judge Merrick Garland. One of the cruel ironies of 2016 was that, in the midst of an election fueled by skepticism about the government's responsiveness to the broader public interest and economic anxiety, the Republican-controlled Senate shut down its own advice-and-consent function to preserve a "conservative" Supreme Court majority that has gone out of its way to strike democratically enacted worker protections at every turn. And as much as these dramatic swings have reshaped the substantive rules of the workplace, they have also upended the norms regarding how judges should act — in ways that should make the public, as well as advocates, nervous about what comes next....

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