Ask Amy Coney Barrett If Bosses Should Be Free to Fire Workers at Will

What is at stake in the battle over the confirmation of Amy Coney Barrett? For most commentators the immediate answer is women's control over their reproductive health and maintenance of the affordable care act. That is surely true, but excessive focus on those issues can obscure consideration of the ways in which many conservative jurists now seek to undermine the legal foundation of our already tattered social safety net. I have not read enough of Barrett to judge her fundamental economic views, but it is important for the Judiciary Committee and the Senate to determine if Barrett wishes to change settled law in the domain of economic regulation

Such cardinal pieces of welfare state legislation as the National Labor Relations Act, granting workers the right to organize and the Fair Labor Standards Act, setting minimum wage and maximum hours standards, emerged from political struggle. But in addition these and other similar laws had to overcome fierce legal obstacles. The central legal barrier was the infamous Lochner vs. New York, (1905) in which the Supreme Court of the United States ruled that a New York law establishing a 60 hour per week maximum hour standard for bakers was unconstitutional.

As University of Michigan law professor Samuel Bagenstos put it in an excellent monograph for the Economic Policy Institute, the justices operated from a narrow, legalistic concept of freedom and equality: "The idea, which judges often made explicit, was that absent labor legislation employers and workers were each equally free to enter into, or refuse to enter into, contracts with each other. That is, the courts presumed that employers and employees had equal power in the labor market. "

The economic crisis of the Thirties made these pristine notions of freedom of contract politically untenable, but nonetheless corporate employers fought a determined battle through the courts in an attempt to overturn such laws. Despite having reversed a whole series of early New Deal era laws the Court in landmark rulings in effect overturned Lochner. Bagenstos quotes key passages from Senator Wagner's defense of the legislation of which he was primary sponsor and from Chief Justice Charles Evans Hughes's majority opinion sustaining the law.

These defenses raise moral and legal issues that are insufficiently advanced in current debates on the minimum wage, which often hinge only on the microeconomics of job creation/destruction.

Bagenstos quotes Wagner as saying,

"The law has long refused to recognize contracts secured through physical compulsion or duress. The actualities of present-day life impel us to recognize economic duress as well. We are forced to recognize the futility of pretending that there is equality of freedom when a single workman, with only his job between his family and ruin, sits down to draw a contract of employment with a representative of a tremendous organization having thousands of workers at its call. [Nat'l Labor Relations Bd., Legislative History of the National Labor Relations Act of 1935 at 20 (1949).]

Bagenstos then cites Chief Justice Hughes, writing in West Coast Hotel Company v. Parrish. He explains,

"Hughes also highlighted the way the seemingly private conduct of employers in paying starvation wages imposed a burden on the public purse: '[w]hat these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met.' Allowing employers to pay their workers low wages, he said, would thus be "a subsidy for unconscionable employers."

Bagenstos argues persuasively that though Lochner as constitutional law may have been overturned, echoes of the law still enter into common law precedents lawyers employ in rule making for regulatory statutes. As one example he cites the principle of at- will job tenure in most states' employment law. This principle gives employers the right to fire for a good reason, a bad reason, or no reason at all. Defenders of the principle point out that it awards the same freedom to workers. But once again, as with Lochner, advocates of the principle neglect the differences in power and life circumstances between most workers and their employers. " To treat the employer's ability to terminate an employee as equivalent to the worker's ability to walk away is to disregard that reality. Workers typically cannot simply leave their jobs."

More broadly, Bagenstos points out that legislation has nipped away at the at- will doctrine by designating certain concerns for which an employer may not fire an employee. Nonetheless, the courts, both liberal and conservative justices, have sought to narrow these exceptions and make appeal to them difficult. At- will remains the default choice.

Bagenstos argues that at- will is both bad in itself and has other deleterious consequences. It reinforces extreme hierarchies within the workplace. It undermines protection of workers speech and privacy rights both of which are forfeited in the workplace.

Amy Coney Barrett comes up for confirmation at a time when trust in our highly inegalitarian capitalism is low, especially among the young. Her interpretation and perspective on Lochner and its descendants may play a key role in our political evolution. I hope she will be interrogated as thoroughly on these issues as Roe v Wade and the Affordable Care Act.