WASHINGTON—American labor unions hailed President Joseph Biden’s nomination of federal appeals-court judge Ketanji Brown Jackson to the U.S. Supreme Court Feb. 25, praising her as a judge who is eminently qualified and “has long stood with working people.”
“Working people need a champion on the bench who will defend and protect our civil rights, including our right to organize in the workplace,” AFL-CIO President Liz Shuler said in a statement. “Judge Jackson has a strong legal track record of fighting on behalf of working people.”
Lonnie Stephenson, president of the International Brotherhood of Electrical Workers, said the country needs a Supreme Court justice that supports workers’ rights and collective bargaining.
“Judge Jackson has long stood with working people and is one of our nation’s brightest legal minds,” Stephenson said.
American Federation of Teachers President Randi Weingarten also praised Judge Jackson’s judicial record.
“Judge Jackson has demonstrated an impressive judicial record and a particular understanding of the laws affecting working people,” Weingarten said.
Jackson, 51, joined the District of Columbia Circuit Court of Appeals last June. Before that, she served eight years as a federal district-court judge in Washington. If confirmed by the Senate, she would replace Justice Stephen Breyer when he steps down at the end of the Court’s current term. She would also be the first Afro-American woman on the Supreme Court, and as a former public defender, the only sitting justice with experience as a criminal-defense attorney.
She has issued a limited number of rulings on labor issues in her nine years on the federal bench. Most recent was her first opinion as an appeals-court judge, handed down Feb. 1 in a unanimous decision vacating a Trump administration rule to narrow the scope of what federal employees’ unions can bargain over.
That rule, published last September by the Federal Labor Relations Authority, said federal agencies did not have to bargain over any change to conditions of employment unless the changes had a “substantial impact.” The FLRA, analogous to the National Labor Relations Board for administering laws and regulations that cover federal workers, claimed that the previous “de minimis” standard was confusing and forced agencies to bargain over trivial issues.
Jackson held that the FLRA had offered contradictory arguments for those claims, and that its throwing out a standard that had been in use for 35 years without more than a “cursory” explanation was “arbitrary and capricious.”
American Federation of Government Employees National President Everett Kelley called the decision “a victory for all federal workers” that highlighted how far the FLRA’s Trump-holdover majority would go “in its attempts to bust unions, limit collective bargaining, and run roughshod over the law.”
In June 2020, Judge Jackson voided part a Trump NLRB rule that overturned a 2014 regulation intended to speed up union-representation elections. The Obama-era rule said employers could not delay holding a vote or certifying the results by litigation over issues such as the size of the bargaining unit; those questions could be settled after the election. Employer organizations complained about “ambush elections,” and the Trump rule extended deadlines enough to at least double the length of time before elections were held.
That rule was published in December 2019 without any public-comment period, and the AFL-CIO challenged it. Jackson rejected the Trump administration’s argument that the rule could be changed without public comment, because it was merely an internal “procedural” matter. She held that it had a “significant impact on the employees’ ability to mount a successful campaign for unionization.”
Jackson, however, drew some criticism for rejecting an agreement by the Lockheed Martin aerospace company to pay $22.8 million to settle a class-action suit about racial discrimination. Former Alabama federal judge U.W. Clemon told President Biden that he should not nominate her because the 2017 ruling “frustrated the rights of the black workers.” Jackson had held that the plaintiffs had failed to prove “consistent race discrimination” against the company’s 5,500 Black employees, and that the settlement would have prevented them from bringing any other discrimination claims.
Farther-reaching was her August 2018 injunction against three executive orders then-President Donald Trump issued that May. In a lawsuit filed by 17 federal workers’ unions, including AFGE, AFSCME, and the National Treasury Employees Union, Jackson ruled that the president did not have the authority to limit the amount of on-the-job time union officials can spend representing workers on matters such as grievances, nor to restrict the issues unions can bargain on.
“No such orders can operate to eviscerate the right to bargain collectively,” she wrote, saying that Congress had guaranteed federal employees that right. However, she upheld other parts of the orders, such as making it easier for agencies to fire workers and letting them impose contracts unilaterally if the unions have clearly delayed negotiations in bad faith.
The D.C. Circuit Court of Appeals ruled in July 2019 that the courts did not have jurisdiction over the orders, and that the unions should contest them administratively, through the FLRA. President Biden revoked all three orders during his first week in office.
AFGE cited Judge Jackson’s ruling on the Trump executive orders in endorsing her nomination. “That single ruling safeguarded federal workers’ union rights and demonstrated the limits of a corrupt administration,” President Kelley said. “Her reasoning demonstrated exactly the kind of principled, independent judicial thinking that should be a hallmark of the highest court in our land.”
Her joining the Supreme Court would not affect its ideological balance, a 6-3 majority that is generally antilabor and frequently willing to jettison established precedents. It would alter its demographics, though: The liberal minority would be all women, one Latina, one Jewish, and now one Afro-American.