For Scalia's Replacement, It's Time for a Justice Who Has Represented Workers

Published February 24th, 2016 -  - 02.24.168


When it comes to picking Supreme Court justices, President Obama has said that he wants justices who understand how law affects the lives of ordinary people.  Two potential nominees mentioned on various short lists, Judge Jane Kelly and Judge Robert Wilkins, would bring the valuable perspective of lawyers who spent large parts of their careers representing criminal defendants.  But, one type of experience that has been missing from the Court for many years has been advocacy on behalf of ordinary workers.

It’s not as though Supreme Court decisions don’t affect working people.  After Congress enacted the Americans with Disabilities Act (ADA) in 1990, the Supreme Court interpreted its coverage so narrowly that Congress eventually amended the law, with broad bipartisan support, to reject the Court’s interpretation.  Unfortunately, millions of workers suffered from the lost protections between the time of the Court’s decisions and the ultimate passage of the amendments.

President Obama’s appointments to lower courts have been notable for their diversity in some respects.  He has appointed women, African-Americans, Latinos, and Asian-Americans in greater numbers than his predecessors.  But, in other respects, President Obama’s appointees have not fully reflected the depth of experience available in the legal community.  For instance, many of the judges President Obama has appointed were former prosecutors, partners in corporate law firms, or both.  Consider Judge Paul Watford, another judge mentioned on many short lists for the high Court.  After working for three years as an assistant U.S. attorney, he went into private practice where he has described his clients as “typically large companies.”

Among the Justices now sitting on the Court, only Chief Justice Roberts has extensive civil litigation experience.  Roberts spent thirteen years at a large law firm, where he primarily represented large corporations.  His practical experience representing corporate defendants in civil litigation comes through often in his incisive questioning at oral arguments.  All of the Justices (and the nation) would benefit from having a colleague with comparable experience representing workers.

Several years ago I attended the oral argument in Long Island Care at Home v. Coke, a case challenging a Department of Labor regulation that excluded home care workers from the minimum wage and overtime protections of the Fair Labor Standards Act.  It was apparent from the Justices questioning that they could easily put themselves in the shoes of a person seeking to hire a home care worker to care for an ailing relative.  For instance, Justice Breyer asserted, “I think it’s probably very common that all over the country, it’s the family, the children, the grandchildren, an aunt, an uncle, maybe a good friend, maybe they’re not even related, who is paying for a companion for an old, sick person so they don’t have to be brought to an institution.  And, if you win this case, it seems to me suddenly there will be millions of people who will be unable to do it and, hence, millions of sick people who will move to institutions.”  No one at the oral argument expressed comparable concern for the individuals who provide the in-home support services.

The Justices all bring their life experience with them to the Court and those experiences can’t help but inform their deliberations and their decisions.  People still talk about the powerful moment in 2002 when Justice Thomas described how the Klu Klux Klan used the symbol of the burning cross to perpetuate a reign of terror throughout the South.  Presumably there are many other less vivid exchanges that occur among the Justices during their conferences, or during private conversations.  If Chief Justice Roberts illuminates a point with a story about one of the corporate clients he once represented, it would be reassuring if there were another Justice who could share an experience representing a group of low-wage workers.

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