Labor and the Supreme Court: Significant Issues of 1992-96
Hukill, Craig, Monthly Labor Review
From 1992 to 1996, the High Court decided a number of cases in labor law and employment law; just as the workforce and its protections for workers have evolved, so, too, have the Court and its docket
What if the Supreme Court convened and no labor cases showed up? As unlikely as it may seem, that is precisely what happened during the High Court's 1994-95 term. This circumstance, while unusual, should not be completely surprising: over the last 30 years, the traditional conception of labor law--emphasizing labor-management relations, union organizing efforts, and internal union affairs--has evolved into a more sophisticated and expansive notion of "employment law" that encompasses a wide array of workplace-based legal protections. The Court's "workplace docket" has come to reflect this shift and occasionally has been dominated by employment law-not labor law-disputes.
A Supreme Court term without "labor" cases would have been unthinkable just three decades ago. During its 1964-65 term, for example, the Court issued approximately 100 published decisions, no fewer than 14 of which raised labor-management or internal union affairs issues.(1) The Court's emphasis on such cases at that time reflected a much different legal landscape than today, with the Court usually being asked to decide workplace issues under just a handful of Federal laws.(2) The nonagricultural work force also was more heavily unionized then, with nearly 3 in 10 workers being members of labor unions.(3)
Today, only about 15 percent of nonagricultural workers are members of unions,(4) and U.S. workers are protected from the cradle to the grave by a web of Federal laws that did not exist in the early 1960s. In many instances, the concerns that prompted Congress to enact these new laws extended far beyond the workplace itself, reflecting changes in the economy and society at large: concerns that not all Americans were being allowed to participate in the country's postwar prosperity led Congress to enact laws that barred discrimination on account of race, color, religion, sex, national origin, disability, and age;(5) concerns about the aging work force and workers' retirement security caused Congress to enact legislation to protect workers' pensions and benefits;(6) concerns regarding global competition helped increase sensitivities about dislocated workers and their communities, prompting Congress to pass legislation requiring many businesses to notify their workers and local officials of future plant closings;(7) concerns that workplaces had become too dangerous and unhealthy moved Congress to enact landmark occupational safety and health laws;(8) and concerns that workplace responsibilities should be more compatible with family life caused Congress to enact a family leave law.(9)
With the advent of these new laws, the Court's labor docket has yielded to a docket that usually includes a sprinkling of labor and employment law cases. Even so, this docket varies widely from year to year. The dearth of labor cases during the 1994-95 term is one example of this variability. Another example occurred when the Court decided five cases dealing with the Employee Retirement Income Security Act during its 1992-93 term, but just one the following term. One aspect of the Court's docket that has not changed during the last few years, however, is the downward trend in the number of full, signed opinions that are issued by the Court. Since its 1988-89 term, the Court has issued fewer opinions during each successive term. The 87 opinions that it issued during the most recent term was the Court's lowest output in at least 30 years and was exactly half the number of opinions that it had issued just a dozen years before.(10) Whether this trend will continue is anyone's guess. It stands to reason, though, that the Court will decide fewer labor and employment cases if its overall docket continues to shrink.
The Court itself, like the work force, has undergone changes in recent years, and no longer can be viewed as the "Nine Old Men. …