On the surface, yesterday’s Supreme Court ruling in Cedar Point Nursery v. Hassid is just another union-busting decision from Chief Justice John Roberts, who has presided over the most anti-labor court since the New Deal. The state of California had a rule requiring corporate farm owners to provide union organizers access to the farms to talk to their workers. In a 6-3 ruling that broke neatly along party lines, Roberts ruled that the regulation was unconstitutional. It’s a terrible decision, but a result that is not all that surprising, as the court’s conservatives have done everything they can think of to de-unionize America in service of mega-corporate interests.
The Democrats, who ostensibly care about organized labor, have done nothing to protect unions or unionized workers from judicial attack, and they are unlikely to use this case as a rallying cry to rebalance the court and prevent the six conservative justices from further vitiating union rights. Conservatives are trying to set labor laws back to pre–Triangle Shirtwaist Factory fire levels, and the Democratic Party is just standing around and watching them burn.
But what should raise every alarm bell available is not just the ruling in Cedar Point Nursery; it’s how the conservatives got there. The argument Roberts and the conservatives used against union organizers in this case was effectively repurposed from arguments segregationists used against civil rights activists. By giving it new life, Roberts has not only opened the door to continued union-busting but also reinvigorated long-discredited views of how property owners might use that property as an excuse to deny civil rights across the spectrum.
The constitutional issue at the heart of the case was the Fifth Amendment’s protection against the government’s use of eminent domain, also known as “takings” in the parlance of Republicans, who excel at making things sound scary. The Fifth Amendment says that private property should not be taken for public use “without just compensation.” Supreme Court precedents have outlined two different kinds of government takings that trigger compensation: regulatory takings and per se takings.
In general, regulatory takings happen when some operation of law restricts how a property owner can use their own stuff. If the government tells me I have to allow turtle hatchlings to waddle past my house on their way to the ocean once a year without my blocking them, that may be a regulatory taking. I may or may not be entitled to compensation for it, even if the government prevents me from enjoying my property’s yearly turtle boon in a soup.
Per se takings are supposed to be a little more straightforward. The government, or people operating under the government’s authority, have to physically seize the property. If the government wants to raze my house to the ground to create a turtle highway, that’s a per se taking and I’m definitely entitled to fair market compensation for my home.
The issue in Cedar Point Nursery should have been about regulatory takings. Cedar Point Nursery is a 300-acre strawberry farm in Northern California. It was required by California law to allow union organizers access to the farm three times a day, 120 days a year, so that those organizers could talk to the farmworkers about their rights. The organizers were not allowed to disrupt farm work: Their access times were limited to early in the morning when workers were showing up, late in the evening when workers were going home, and during the lunch break. I would argue that such access isn’t a taking at all, but, to the extent that it is, it’s clearly a regulatory taking. Cedar Point paymasters didn’t have to do anything, and they weren’t being deprived of their property or of any labor that would normally be accomplished on their property. All Cedar Point owners had to do was allow the union organizers on their land and not eat them when they showed up.
But that was too high a bar for Cedar Point, and Roberts and the conservatives agreed: They didn’t just rule that the union access statute was a taking; they ruled that it was a per se taking. They ruled that merely allowing organizers on Cedar Point property was the equivalent of having property seized by the government. Roberts argues: “California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.” He writes that the “right to exclude” is among the most fundamental property rights, and that it was violated by the government’s giving organizers access to the laborers.
This feels like a good time to mention that union organizers are not locusts. They weren’t invading the strawberry farm with champagne and whipped cream and devouring the private property rights of the owners. They weren’t seizing the land. They were talking to workers during their lunch break.
Again, the outcome is not surprising. Most everybody expected Cedar Point Nursery to win this case, not because they have the right argument but because they have the right Supreme Court. Corporate forces, whether they wear suits or robes, really do believe that merely informing workers of their rights is bad for business. But there is an entire field of regulatory taking law that this court could have relied on to achieve its desired anti-labor outcome.
By putting this in the category of a per se taking, Roberts adopted the logic of Barry Goldwater and other segregationists during the battle over the Civil Rights Act. These white supremacists were the first to argue that the right to “exclude” should allow white business owners the right to deny service to Black customers. They came up with the novel idea that the Fifth Amendment somehow nullified the government’s ability to promote the equal protection and due process guarantees of the 14th Amendment without just compensation—as if my tax dollars should compensate some racist white man for his sadness at allowing me to exist in his store. Racist people have some freaking nerve, I tell you.
The Supreme Court rejected that argument, unanimously, in 1964, but Roberts resurrected it yesterday. All of a sudden, the right to exclude is back on the table as something that property owners can use to thwart basic human rights, and we’d be foolish to think that this rollback of rights will stop with farmworkers in California. Harvard Law professor Niko Bowie tweeted out a few examples of where Roberts’s logic could lead next: “Antidiscrimination laws ‘take’ employers’ ‘right to exclude’ workers of color, pregnant workers, and LGBTQ+ workers.… Fair housing laws ‘take’ landlords’ ‘right to exclude’ renters of color, families, and renters with vouchers. Rent control laws ‘take’ landlords’ ‘right to exclude’ renters unable to afford market rates.… Endangered species laws ‘take’ landowners’ ‘right to exclude’ conservationists. Environmental laws ‘take’ landowners’ ‘right to exclude’ inspectors who are needed to enforce their restrictions.”
In his dissent, Justice Stephen Breyer also listed a litany of “ordinary regulations” that require temporary entry onto private property and explained that all of those regulations are now in question because of Roberts’s weaponization of the takings clause. What’s going to happen the next time a health inspector shows up at a restaurant to check what’s being put into the soup?
But Roberts waves these concerns away with the judicial equivalent of “trust me.” He argues that limited access to private property will be allowed (“trespass” is the jargon), while his decision addresses only permanent or ongoing seizures of land (“takings”). But that argument is circular, since his very opinion has the effect of flattening the difference between trespass and takings to whatever five or more conservative justices feel it is. Personally, I’d like to keep my hard-won, permanent, ongoing right to be served food at a white lunch counter, three times a day, 120 days a year if I damn well please.
This decision is a game changer for labor laws. It’s a game changer for how white owners will seek to deny rights. And it’s a game changer for how their corporations will attempt to fight regulations. It opens a Pandora’s box of terrible possibilities by casually throwing out decades of regulatory takings precedent in favor of an extremist, potentially limitless view on the rights of property holders. And it will be decades before most people even realize how much damage was done here.
I believe this case will go down as Roberts’s fourth-worst majority opinion, behind only his decision in Shelby County v. Holder destroying the Voting Rights Act, his Trump v. Hawaii ruling in favor of anti-Muslim bigotry, and whatever horrible thing he writes next year about abortion.
Democrats might, I don’t know, want to do something about the Supreme Court? If they won’t expand the court to protect Black voting rights and they won’t expand the court to protect LGBTQ rights and they won’t expand the court to protect women’s rights and they won’t expand the court to protect labor rights, pretty soon they’ll run out of core constituencies to sell out in the name of bipartisanship.