Jackson defends "the right to strike" in her first big dissent

For those wanting to understand Justice Ketanji Brown Jackson better in her role on the Supreme Court, her solo dissent in Thursday's labor law decision is "a feature, not a bug."

On Thursday, Justice Ketanji Brown Jackson authored her first dissenting opinion in a merits case as an associate justice of the U.S. Supreme Court. What’s more, she did so as the sole dissenting voice in the case, Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174.

The case — asking whether a company’s lawsuit against a union over concrete that was ruined following a strike of the company’s drivers could proceed in state court — was actually, Jackson told us, about both the history of the National Labor Rights Act and future of labor rights in America.

“The right to strike is fundamental to American labor law,” she began her dissent, setting the groundwork for an opinion that was longer than the majority opinion and the two opinions concurring in the judgment combined.

Jackson was also, it appeared, setting the groundwork for her time on the court. Over the course of her first term as a justice, her work in oral arguments has certainly told us much about her skill and contribution to the court — as I’ve written. But arguments are of the moment — they are chances for justices to tease out ideas and to attempt to win over colleagues — whereas opinions are forever. They are the words that go into history. And the justices know that.¹

“Congress was well aware that organized labor’s exercise of the right to strike risks harm to an employer’s economic interests,” Jackson wrote. “Yet, Congress protected that right anyway. In fact, the threat of economic harm posed by the right to strike is a feature, not a bug, of the NLRA.”

Jackson, who is 52, wrote as someone who seems to understand already that her role — for the next decade or longer, unless something dramatic changes — might often be to tell the court and the country where and how she believes it is going wrong.

She’s already signaled her comfort with this role in some of her shadow docket dissents — in death penalty cases, in a case raising questions about the role of plea bargaining in our criminal legal system, and in a dissent questioning how the Supreme Court is tossing out lower court decisions more often under what used to be a rarely invoked rule. (In all but one of these, she was joined by one or both of the other Democratic appointees in dissent.)

On Thursday, though, Jackson wrote her first dissent in a case following full briefing and argument — and, as noted, she did so alone. Because she was writing for only herself, moreover, we also got a more clear look than we normally do from opinions at how Jackson wants to be seen on this court.

Or, to apply the words of her Glacier Northwest dissent to an examination of that dissent, her solo status is “a feature, not a bug” for those wanting to better understand Justice Ketanji Brown Jackson.

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So, what happened?

In Glacier Northwest, all eight justices other than Jackson voted to reverse the Washington Supreme Court, which had held that Washington courts couldn’t hear the company’s case against the union because, under the NLRA, the “loss was incidental to a strike arguably protected by federal law.”

That was a decision applying federal law as interpreted by the Supreme Court in 1959. Thursday’s decision ultimately split on two important grounds relating to that rule: first, whether the activity engaged in by the union here was “arguably protected” by the NLRA and, second, whether that should even be the rule for deciding when courts need to defer, at least initially, to the NLRB.

Justice Amy Coney Barrett wrote the majority opinion, which garnered support from only four other justices. She was joined on the right by Chief Justice John Roberts and Justice Brett Kavanaugh and on the left by Justices Sonia Sotomayor and Elena Kagan. It was, as we will see, ultimately a decision that did little to resolve the case.

In introducing the facts, Barrett quickly made clear where the decision was going, though, writing that the “labor union allegedly designed the strike with the intent to sabotage Glacier’s property.” Such language practically answers itself if the question is whether the activity is “arguably protected” by the NLRA.

Sure enough, Barrett claimed to apply the 1959 ruling, San Diego Building Trades Council v. Garmon, but quickly answered the question no and, accordingly, held that the Washington Supreme Court was wrong to decide that the company’s state-court lawsuit couldn’t proceed.

After describing a “mad scramble” that followed the return of the trucks by the striking drivers with concrete still in them, Barrett wrote, “When all was said and done, Glacier’s emergency maneuvers prevented damage to its trucks. But the concrete that it had already mixed that day hardened in the bunkers and became useless.” Importantly, the majority opinion didn’t rest its ruling solely on the ruined concrete. Throughout the remainder of Barrett’s opinion, the decision melds the ruined concrete with the potential damage to the trucks — which, again, did not happen — in concluding that the activity was not “arguably protected.”

Because “the risk of harm to its equipment was both foreseeable and serious,” Barrett held for the court, the union had a responsibility to “take reasonable precautions” to prevent that harm, citing earlier cases. And though the union claimed that it did so, Barrett and the majority concluded, “We see it differently” — discounting the union’s claims and despite the fact that no harm actually befell the vehicles.

In dissenting, Jackson wrote that the court got it all wrong. She wrote her dissent for lower courts and labor lawyers — but also, throughout, for the public.

“When employees stop working, production may halt, deliveries may be delayed, and services may be canceled,” she wrote at one point. “At the risk of stating the obvious, this means that the workers’ right to strike inherently includes the right to impose economic harm on their employer.”

Detailing the history of the NLRA and earlier rulings, Jackson first questioned an underlying premise of the language behind the dispute, writing that Garmon preemption, while called that, isn’t really preemption at all.

It’s “something of misnomer,” Jackson wrote, because it doesn’t reject the possibility of state litigation altogether. Rather, it “requires state courts to take a ‘jurisdictional hiatus’ while the Board considers the dispute in the first instance.” In other words, if a court finds activity to be “arguably protected” by the NLRA, the state court lawsuit can’t proceed under Garmon while the NLRB considers whether the activity is protected — a decision that is then itself subject to judicial review. If the NLRB or, later, federal courts decide the activity is not protected, though, then the state court lawsuit could be reinstated.

With that explanation of the underlying reason for and limits of the rule established, Jackson then explained where the “reasonable precautions” language relied on by the majority came from — a case where “employees at a foundry walked off the job at a time when the foundry’s furnace was full of hot molten iron, threatening severe damage to the employer’s plant and equipment.” As Jackson continued, “the narrow duty” to take reasonable precautions “does not — and cannot — displace the general rule that labor strikes are protected even when the workers’ withdrawal of their labor inflicts economic harm on the employer.”

With those two ideas in mind, Jackson argued, the majority dove too deep. As she wrote, the majority took “an analytical approach … that cannot be squared with Garmon,” under which the court should have left the initial resolution of whether the activity was covered to the NLRB once the court determined there was enough of a dispute here that the majority had to wade into the facts of what happened the day of the strike.

Or, as Jackson put it most bluntly at one point, “[T]hat is not the assignment.”

Three justices — guess who — would go further

Now, as we’ve seen previously this term already, the reactionary nature of this court’s majority means that there is (almost) always a more extreme position that could be taken.

Justice Sam Alito, joined by Justices Clarence Thomas and Neil Gorsuch, would have gone further here. For them, the concrete being ruined was enough. “Nothing more is needed to resolve this case,” Alito wrote, suggesting that he did not even believe the potential harm to the trucks was needed in order for the Washington Supreme Court to have been wrong about whether the company’s state case could proceed.

To this, Jackson highlighted the fact that NLRB cases considering similar questions addressed workers striking at “a raw poultry plant” and “in cases involving, for example, milk and cheese.” Regarding the chicken case, Jackson quoted the Board affirming an administrative law judge’s conclusion that “it is ‘[n]orma[l]’ for ‘planned employee strikes [to be] timed to ensure the greatest impact on an employer.’”

Three justices, though, would be willing to upturn even that understanding.

Of course, Thomas would go further still, writing for himself and Gorsuch about “the oddity of Garmon’s broad pre-emption regime.”

After a few pages of criticism of Garmon, Thomas concluded by noting that no one in this case “asked us to reconsider Garmon,” and then, in effect, asking someone to do so. The court should “carefully reexamine whether the law supports Garmon’s ‘unusual’ pre-emption regime,” he wrote, in “an appropriate case.”

An unresolved resolution

While Jackson was alone in her dissent, a side issue unresolved by the majority that was centered in Jackson’s dissent and discussed in Alito’s three-justice opinion left the case before the court — the dispute between Glacier Northwest and the Teamsters — ultimately unresolved as well.

As the appeal of the state-court lawsuit dismissal has been going through the courts, the NLRB’s general counsel examined this incident and filed an administrative complaint against Glacier Northwest within the NLRB structure that Jackson described.

In a footnote, Barrett acknowledged this but wrote that the court wouldn’t be the “first” to weigh in on the question of the effect of the general counsel’s action.

For Jackson, though, that should have been dispositive. If the general counsel filed a complaint, the “logical implication … is that the union’s conduct is at least arguably protected by the NLRA.” And, as such, “courts — including this Court — should suspend their examination,” she wrote, concluding her dissent by urging the Washington state courts to do exactly that on remand.

To that, and making clear that we likely haven’t heard the last of this case, Alito wrote that if state courts do so, “the decision, in my judgment, would be a good candidate for a quick return trip here.”

In the background

A final note: It’s hard to read this case — and Jackson’s vigorous defense of the NLRB’s history and process — without thinking that it’s also a forerunner to next term’s challenge to agency deference altogether in Loper Bright Enterprises v. Raimondo.

If today’s ruling is initially seen solely as a loss for labor rights, the opinions should be re-read with an eye on their implications for the administrative state and Chevron deference more broadly.

1. This paragraph was expanded after initial publication to add information about the distinction I draw between oral arguments and opinions.