But what today’s decisions really showed was that Democratic presidents need to win assurances not only about their judicial nominees’ commitment to reproductive freedoms, but also about their understanding of the dynamics of work in America. The surest way an employer can block his or her worker’s legal right to form a union is to illegally fire that worker, which in and of itself does immediate irreparable harm, almost invariably, to unionization campaigns. Requiring the higher standard could, and often does, lead to protracted court proceedings that take months or even years, by which time the workers’ organizing campaign will be a dimly recalled memory of a disheartening defeat.
There was a time when unions were so big and powerful that many leading Democratic lawyers, including those sitting on the Supreme Court, had an experiential or at least intuitive understanding of how the particular protections that the National Labor Relations Act afforded workers actually played out, or failed to, during organizing campaigns. But the last Democratic-appointed Supreme Court justice with a background in such matters was Arthur Goldberg, who’d served as the general counsel for the CIO and the United Steelworkers before John F. Kennedy made him his secretary of labor, and then, in 1962, an associate justice of the Supreme Court. (Lyndon Johnson then used the “Johnson treatment” to persuade Goldberg to switch his job in 1965 to that of the U.S. ambassador to the U.N., thereby enabling LBJ to appoint his own legal consigliere, Abe Fortas, to what was then considered “the Jewish seat” on the Court.) There have been a number of Democratic-appointed Supreme Court justices since then (never enough, alas), but Goldberg may have been the last one who could easily make the case why workers’ right to collective bargaining requires immediate reinstatement when they’re illegally fired for seeking to unionize.
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