Just before announcing his retirement from the Supreme Court in June, Justice Anthony Kennedy was part of the Supreme Court’s majority opinion in its ruling that public sector employees can stop paying union dues and fees, but still receive union-negotiated benefits.
The Janus v. AFSCME decision was widely seen as a blow to the labor movement, and one that took on even greater significance when Brett Kavanaugh was nominated by President Donald Trump to take Kennedy’s seat on the bench. While a flurry of attention has been paid to what a Kavanaugh confirmation would mean for reproductive rights, his record — especially coupled with the leanings of the sitting members of the Supreme Court on labor issues — means that women could be dealt yet another significant blow. This would not just be a blow to women’s health and bodily autonomy, but their economic stability and mobility.
“Public sector jobs have been essential for women to move into the middle class,” Andrea Flynn, a fellow at the Roosevelt Institute, said in an interview. “There is really good data on how public sector jobs have been essential to moving women into the middle class. They’re basically the only place where the wage gaps for race and gender are much smaller.”
“Because women are disproportionately employed in the public sector, they’re disproportionately impacted,” Flynn said.
Kavanaugh may also potentially play an instrumental role in shaping labor policies as unionization continues its drop over the past four decades. As a result, Flynn said that the Janus decision is particularly concerning.
“It drags at the heart of public sector unions,” she said. “Unions in the public sector have made those jobs even more secure and a place of fairness and stability, and I would even say prosperity for people in those jobs. And those people, again, are disproportionately women, and among women, disproportionately women of color.”
In other words, attacks on public sector jobs concurrently with attacks on unionization result in leaving the stability of a large swath of American women in peril.
Since 1943, 28 states have passed right-to-work laws — which prevent employers from entering into agreements with unions and prohibit payments of union dues as a condition of employment — meaning that in more than half of the country, unionizing is already very difficult. In right-to-work states, employees who are hired at a unionized workplace who do not wish to pay dues into that union don’t have to, stripping the union of the funds it needs to operate, run and most effectively lobby for better benefits and protections for its members. Couple that with what Flynn described as a labor market that increasingly reflects a higher concentration of workers working for fewer employers, and you’re left with a labor market that, by design, drives down wages by decreasing competition.
This is precisely where Kavanaugh comes in, with his record of repeatedly siding with corporations over workers — most recently in a 2018 case, in which he dissented from the majority on the D.C. Court of Appeals in siding with a union-busting employer who set up an “alter-ego” corporation to do the same work, but under nonunion terms (and with nonunion employees).
In 2017, Kavanaugh also sided with CNN in their replacement of unionized workers with nonunionized staff. In 2016, he sided with Verizon that employees shouldn’t be allowed to display union signs in their car since the union had waived their right to picket, and in 2015 he sided with AT&T, saying the company lawfully banned employees from wearing union shirts on the job. He even sided with SeaWorld and against the Occupational Safety and Health Administration when in 2010 a whale trainer was killed there after a live show.
An intersection of damaging trends
In addition to Kavanaugh’s prior anti-union and anti-worker’s rights decisions, he appears to believe that women simply can’t be trusted to do what’s best for themselves and their families. In 2015’s Priests for Life v. United States Department of Health and Human Services, he expressed his belief that an employer’s religious liberty trumps an employee’s access to birth control under the exemption plan outlined by the Obama administration for those seeking religious exemptions. Later, in 2018’s Garza v. Hargan case, he dissented from the majority and expressed his belief that an undocumented minor should not be granted the right to access abortion care while detained.
“I think that a lot of times, we think about attacks on health and attacks on labor as two distinct efforts,” Flynn said. “And what makes me nervous about Kavanaugh is that he presents the intersection of so many trends that are really damaging for women.”
And those disproportionately impacted by his opinions on both reproductive rights and labor rights are one in the same: women. And even more commonly, women of color.
“Whenever we are hurting unions, it hurts women and people of color the most. Adding a person who has a record like Kavanaugh to the bench, especially after adding Gorsuch, will be traumatic to women, the largest sector of the public sector workforce,” Carol Joyner, the director of the Labor Project for Working Families, in partnership with Family Values @ Work, said in an interview.
Joyner pointed out that black women represent 17.7% of all public sector workers — the largest single demographic represented in the public sector workforce. Attacks made on public sector workers and their unions are inevitably “traumatic” for women, she said, as any move to harm unions “hurts women and people of color the most.”
“We have heard from teachers, child care workers, firefighters, first responders, government employees who are seemingly invisible but who keep the government moving all the time. Janus will affect these workers especially. And when we think about the reproductive health issues that will be affected if Kavanaugh is on the court, this is just another attack on working people,” Joyner said.
For black women especially, Joyner said, the public sector jobs they hold might be largely unseen — mail carriers, those who answer the phone at local government services buildings and women who process things like vehicle tags — but these jobs are not only essential to the daily function of our communities, they provide an avenue through which these women are able to securely act as heads of household.
Of all sole or primary breadwinners in American households, 42% are women, whether single or married, with another 22.4% of American women serving as the co-breadwinners in their household, bringing home at least 25% of her family’s total annual earnings. With well over half of American families dependent on working mothers’ earnings, public sectors jobs and their reduced wage gap are all the more essential — especially to the 40.4% of sole or primary breadwinners who are women of color.
“For African-American women and women of color who are increasingly heads of households, you are talking about people who are ... raising their families and are not spending their money in offshore investment accounts, but locally in our communities and in our neighborhoods,” Joyner said. She argued that unions are essential to this economic development cycle that extends past mere monetary resources, but into the long-term development of communities.
“When teachers realized they could barely make ends meet, and they didn’t see any opportunity to continue in their job and serve their students, those teachers decided to fight not just for themselves, but for better and quality education for their students. Students were using books that were decades old. That is part of what they were fighting against,” she said.
For students to learn, they not only need accurate, current books, but teachers who are able to effectively live their lives.
“Always, the goal is so that people can live better,” Joyner said. “What’s promised to every single citizen in this country is that our children can do better than what we have done. That’s something we can guarantee our kids when we win at helping people have the benefits to help them live better.”
To do so, working people need the kinds of benefits that help family systems, like paid family leave and paid sick days. Unions have historically not just fought for these basic benefits, but successfully negotiated for their members.
Flynn noted that women are rarely at the top of corporations, and that white men are the ones who benefit from an economy that is less than friendly to unions.
“Women, and particularly women of color, are those more likely to be in precarious work arrangements and working in informal economies without steady wages, work protections and other benefits,” she said.
“I have heard so many people say, ‘But the Supreme Court doesn’t impact what I do in my life,’” Flynn said. “The Supreme Court is a major rule-setting body in the United States. The rules that the Supreme Court sets govern all of our lives.”