Despite what Chief Justice Roberts says, there are Trump judges, and the challenge for lawyers who represent workers is how to frame arguments in a way that will persuade them, or at least give them pause.  The only chance for success is to find a principle they have applied where they are sympathetic to one party, and urge them to apply that same principle to your case.  I thought of this recently when I read the Eleventh Circuit’s opinion in Moms for Liberty v. Brevard Public Schools.

The Moms for Liberty case challenged the Brevard County School Board’s application of rules prohibiting speech at School Board meetings that was “personally directed, abusive, obscene, or irrelevant.”  The two Trump appointees on the Eleventh Circuit panel explained that the prohibition on “abusive” language was “constitutionally problematic because it enabled [the Board Chairperson] to shut down speakers whenever she saw their message as offensive.”  The Trump judges went on to explain that restrictions that bar offensive speech are impermissible because they “effectively require[] ‘happy-talk,’ permitting a speaker to give positive or benign comments, but not negative or even challenging ones.” 

I was especially interested in the Moms for Liberty case because one of the partisan divides at the National Labor Relations Board (NLRB) in recent years has involved rules regarding civility in the workplace.  The NLRB has long recognized that overbroad or ambiguous employer rules may discourage workers from exercising the rights protected by the National Labor Relations Act (NLRA).  The Board and the courts have agreed that workers don’t necessarily lose the Act’s protection by speaking “bluntly” or even “recklessly,” or in ways that management might perceive as insubordinate or rude.  The NLRB has held that employer rules prohibiting “inappropriate” or “disrespectful” conduct violate the NLRA because they can discourage workers from complaining about their terms and conditions of employment.  Despite this history, in The Boeing Company, the Trump NLRB announced a blanket rule that all employer rules “requiring employees to abide by basic standards of civility” are lawful.  Then, last year, in Stericycle, Inc., the Biden Board overruled Boeing, and announced that it will review employer rules on a case-by-case basis, considering each rule from the perspective of a worker who is economically dependent on the employer, but also wishes to engage in activity protected by the NLRA.

There are obvious differences between rules applicable at school board meetings versus rules in a private sector workplace.  Most notably, private employers are not subject to the First Amendment.  But, Justices across the political spectrum have agreed that the NLRA reflected a “congressional intent to encourage free debate on issues dividing labor and management.”  Justices Alito and Thomas joined an opinion that described the NLRA as “favoring uninhibited, robust, and wide-open debate in labor disputes.”  It shouldn’t be hard for a judge to understand how an employer rule that threatens workers with discipline for making  offensive or disrespectful comments violates a law that was designed to promote robust debate.  But, to make this point to Trump judges, it may be helpful to remind them of a school board using a similar rule to shut down a parent who characterized a policy adopted by the board as a “simple ploy to silence our opposition to this evil LGBTQ agenda.”

When you read judicial opinions that play on the sympathies of judges, you can often find nuggets that may be useful in future cases.  Consider National Federation of Independent Business v. OSHA, the case where the Supreme Court enjoined an OSHA rule that required large employers to ensure that their workers were either vaccinated, or tested for Covid-19 on a weekly basis.  The Court majority described the rule as follows:  “The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.”  In fact, the rule said nothing about who would pay for the weekly testing.  But, when focusing on workers who did not want to get vaccinated, all of a sudden the right-wing Justices recognized a power imbalance between workers and employers, and so they assumed that employers would be able to force workers to foot the bill for any testing.  Contrast this with the Court’s decision in Epic Systems Corp. v. Lewis, where four of the same Justices framed the question as whether “employees and employers [should] be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?”  In the OSHA case, the Justices could have similarly described any costs borne by workers for weekly testing as the product of an agreement between employers and employees.

I’m not suggesting that judges will always apply principles consistently.  For example, in Janus v. AFSCME, Justices who have otherwise proclaimed their adherence to originalism, made no attempt to ground their decision in the original public meaning of the First Amendment.  And, I’m not naïve enough to believe that the six right-wing Justices on the Supreme Court will now start acknowledging the inequality of bargaining power between unorganized workers and corporate employers.  But for worker advocates, the only hope of persuading a Trump judge to rule for you may be to point out that other Trump judges have already embraced the same principle, albeit in cases benefitting the MAGA base.  And even if, in many cases, the Trump judges will not apply the principles consistently, there is independent value in unmasking judicial hypocrisy.