News & Commentary

September 20, 2020

Jacob Denz

Jacob Denz is a student at Harvard Law School

Ruth Bader Ginsburg has died. The Supreme Court justice fought for equality for women, including workplace equality both in and out of the legal profession. The Washington Post and The New York Times review some highlights. As an advocate, Justice Ginsburg led a team of ACLU lawyers that brought six cases to the Supreme Court, shaping the extension of equal protection jurisprudence to sex equality. These cases, which often involved male plaintiffs, included arguments for sex equality in Social Security and welfare benefits, estate administration, and even consumption of low-alcohol beer. Justice Ginsburg also represented New Jersey teachers fighting for maternity leave benefits. On the Court, Justice Ginsburg authored opinions upholding the rights of women including one that required the Virginia Military Institute to become co-educational. Justice Ginsburg also notably dissented from dismissal of a sex discrimination lawsuit filed by Lily Ledbetter, the only female supervisor at a tire plant in Gadsden, Alabama, arguing that unequal pay could form the basis for such a lawsuit even if it began more than 180 days before the suit was filed. In her own career, Justice Ginsburg was also a trailblazer, attending Harvard and Columbia law schools as one of a handful of women, fighting for equal pay for women law professors at Rutgers, and becoming only the second woman to join the Supreme Court.

Justice Ginsburg’s death raises the important question whether President Trump will appoint, and a Republican Senate confirm, her successor. The New Yorker appraises the landscape. Procedurally, there is time for Senate Majority leader Mitch McConnell to conduct a confirmation process this year, and he has shown every intention of doing so. The political feasibility of moving so quickly depends on whether enough Republican Senators fall in line—three or four would have to oppose the confirmation for it to fail, depending on timing and the outcome of the Arizona Senate election. The leading candidate to replace Justice Ginsburg is Amy Coney Barrett of the Seventh Circuit, but Barbara Lagoa of the Eleventh Circuit is also a realistic possibility. If Democrats retook the Senate in 2020, they could “retaliate” for a rushed confirmation in a number of ways, including abolishing the filibuster for legislation, pushing for statehood for the District of Columbia and Puerto Rico, increasing the number of lower-court federal judges, and creating more seats on the Supreme Court.

While such an analysis focuses on Senate “precedent” and Republican hypocrisy after resisting President Obama’s election-year nomination of Judge Merrick Garland to the Supreme Court in 2016, Joe Biden’s campaign is adopting a different rhetorical strategy, The New York Times reports. Biden’s campaign will link the Court vacancy to public health and President Trump’s handling of the COVID-19 pandemic, focusing on the Court’s role with respect to the future of the Affordable Care Act. The Supreme Court is scheduled to hear argument in yet another of a series of cases challenging the Act only a week after the Presidential election. Biden may also seek to motivate pro-choice voters worried about a possible repeal of Roe v. Wade. The Biden campaign will have an unusually direct role in the confirmation process through Senator and Vice Presidential candidate Kamala Harris, who will be among the Senate Democrats questioning any Trump nominee to the Court. Biden has previously opposed increasing the number of Justices on the Court.

In a more local political confrontation related to health care, nurses at Mission Hospital in Asheville, North Carolina have won their union campaign, The Intercept details. Approximately 1,800 nurses will now be represented by National Nurses United, the largest victory at a nonunion hospital in the South and the first private sector hospital win in North Carolina. The hospital is owned by Tennessee-based HCA Healthcare, the largest hospital corporation in the country previously run by current Senator Rick Scott, who engaged in extensive Medicare fraud. HCA had brought in an array of union-busting firms to fight the effort, and the Trump-appointed National Labor Relations Board had delayed the election for months, but the union won with 965 votes in favor to 411 against. NNU is one of the most progressive unions in the country, backing Medicare for All and safe staffing ratios for nurses.

The Intercept also recounts how an internal division within the leadership of the International Association of Fire Fighters has taken shape along the fault lines of the 2020 Presidential election. Ed Kelly, General Secretary-Treasurer of the union, has accused union President Harold Schaitberger of financial impropriety and may have leaked documents in support of the accusation to right-wing media. Kelly is an ally of President Trump, while Schaitberger is a strong supporter of Biden. Federal authorities have launched a criminal probe into the accusations. Meanwhile, Kelly’s chief of operations, Matthew Golsteyn, was pardoned by President Trump for alleged war crimes after his admission that he killed an unarmed Taliban fighter whom he suspected of being a bomb maker.

Enjoy OnLabor’s fresh takes on the day’s labor news, right in your inbox.