Last week, I wrote that Judge Brett M. Kavanaugh, Donald Trump’s Supreme Court nominee, had “a less egregiously anti-labor record than Justice Neil Gorsuch.” I was wrong.
I based that opinion on Gorsuch’s dissent in a 2016 case, where the 10th Circuit Court of Appeals upheld a Department of Labor ruling that a truck driver had been unjustly fired in 2009 for abandoning his trailer after its brakes froze. The trucker had unhooked the cab and driven off after being stranded without heat for more than three hours by the side of a highway in subzero temperatures. But federal law, Gorsuch contended, only protected the trucker if he’d refused to drive because of safety concerns—and he hadn’t been “fired for refusing to operate his vehicle.” He sarcastically added that “it isn’t our job” to write a law protecting unauthorized use of a vehicle.
Kavanaugh, however, wrote a similar dissent in a 2014 case, SeaWorld of Florida v. Perez. The Orlando theme park was contesting violations the federal Occupational Safety and Health Administration had found after a 12,000-pound killer whale pulled trainer Dawn Brancheau off a platform and drowned her in 2010. He argued that the Labor Department did not have the right to require safety regulations, because Brancheau was involved in a “performance” with an inherent risk of danger.
The federal Occupational Safety and Health Act states that employers have a “general duty” to keep the workplace safe. Because it would be impossible for OSHA to set standards covering every conceivable situation, there is a four-part test to determine when there is a violation. An activity or condition has to present a hazard, either the employer or the industry recognizes it as one, the hazard is “likely to cause death or serious physical harm” or has actually done so, and there has to be a feasible way to eliminate or materially reduce it.
SeaWorld argued that “when some risk is inherent in a business activity, that risk cannot constitute a ‘recognized hazard.’” It also claimed that it would be impossible for its trainers to avoid close contact with the killer whales, and that its training of both the humans and the animals was enough to avert dangerous situations.
The U.S. Court of Appeals for the District of Columbia Circuit disagreed. Judge Judith W. Rogers wrote that the whale, named Tilikum, had already killed a trainer in 1991, and that SeaWorld had recognized that hazard by prohibiting trainers from going in the water with him, limiting contact to a small, experienced group who stayed on platforms. After Brancheau was killed, she added, it barred trainers from going in the water with all of its killer whales.
The ruling specifically rejected the argument that because trainers “formally accepted and controlled their own exposure” to its risks, close contact with killer whales could not be recognized as a hazard.
That was exactly what Judge Kavanaugh argued. “Many sports events and entertainment shows can be extremely dangerous for the participants,” he wrote—but they choose that risk.
Many sports events and entertainment shows can be extremely dangerous for the participants,” Judge Kavanaugh wrote—but they choose that risk.
The basic questions, he opined, were “when should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants?”—and “who decides that?”
The Department of Labor doesn’t have that authority, he concluded. Its “bureaucracy,” he wrote, “has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball, to separate the lions from the tamers at the circus, or the like.”
That logic could be used against all occupational-safety requirements, Judge Rogers responded. “Many traditional industries can be extremely dangerous to their employees: construction, metal pouring, logging, welding, firefighting, roofing, electrical power line installation, handling explosives,” she wrote—yet they are all regulated under the Occupational Safety and Health Act, notwithstanding that employers could claim their employees were also “willing participants,” “even in the face of known physical risk,” or taking part in “the ‘normal activities’ intrinsic to the industry.”
The possibility of the courts adopting that position is not so far-fetched. From 1905 until 1937, the Supreme Court regularly ruled that there was no constitutional way to set minimum wages, limit the workweek to less than 60 hours, prevent 8-year-olds from working in cotton mills, or prohibit employers from forcing workers to sign contracts pledging not to join a union. Workers freely chose to take jobs with those conditions, it held.
“There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker,” Justice Rufus Peckham wrote in Lochner v. New York, the 1905 case that set the precedent. The Federalist Society, the organization Donald Trump has tapped to select judges for him, has regularly held events discussing whether Lochner should be ‘rehabilitated’ in the name of economic rights.
One could easily stretch this “you chose this risk” logic to deny occupational-safety regulations and protections against sexual harassment. Construction work is often dangerous, so why should the government mandate that metallic lathers be tied off by harnesses that keep them from plummeting 10 stories, when they’ve freely chosen that job? Or in Putin-era Russia, ads seeking secretaries or assistants with “no complexes” are common, so why should the government interfere if women take jobs with bosses who demand that kind of extra duties?
The New Deal-era Supreme Court disagreed, on the grounds that the power imbalance between workers and employers is too big for such choices to be genuinely free. On the other hand, that pro-labor attitude is exactly what certain forces are trying to purge from American jurisprudence.