Commentary on Political Economy

Sunday 27 June 2021



Ideology Shows in Supreme Court Ruling on Union Organizing

If conservative justices oppose judicial activism, what did they just do to a longstanding California labor law?

Union organizers, not welcome.
Union organizers, not welcome. Photographer: Patrick T. Fallon/AFP via Getty Images

So far, most of the Supreme Court’s opinions this term have featured a high degree of consensus. The conservative majority has mostly avoided making new law that would be partially rejected by the three liberal justices.

The exception that proves the rule is a striking decision issued on Thursday involving a California law that gives union organizers physical access to farms in order to try to unionize workers. In the 6-3 decision, with the court divided along ideological lines, the conservatives held that the law amounted to a taking of private property that requires compensation under the Fifth Amendment to the Constitution. Although the court did not go so far as to say so, the strong implication is that the law will now no longer be operative.

The California law, which dates back roughly half a century, to the era when organizers like Cesar Chavez were struggling to unionize migrant workers in the state’s lettuce fields, allows labor organizers access to farms for up to three hours a day up to 120 days a year. The law was intended to stop the practice whereby farm owners fought off organizers in part by keeping them off their land.

The details of the constitutional disagreement between the majority opinion, written by Chief Justice John Roberts, and the dissent, written by Justice Stephen Breyer, can be summarized simply.

Roberts wrote that allowing someone to come onto the property of another person means taking away the owner’s property rights, which ordinarily include the right to exclude. Because the law allows the labor organizers to go onto the farmers’ property, he said it amounts to what constitutional lawyers call a “per se” taking — that is a government invasion of privately held land.

Breyer rejoined that, under existing precedent, a per se taking exists only where the access granted to the government is permanent. Because the access here was temporary, he reasoned, this was not a taking under the Constitution.

Breyer went on to warn that the decision could spell trouble for the plethora of government regulations that require businesses to allow inspectors onto private premises. Roberts’s answer was that the government may condition benefits on allowing access. So if a business needs a permit to operate, it will have to agree to inspections, and those inspections won’t count as a taking.

As you can probably see from this description, the real disagreement between the conservatives and the liberals in this case is less about the technical meaning of the taking of private property under the Constitution than about judicial interference in a long-established regulatory regime designed to help labor organizers fight employers.

The conservatives, of course, sought to depict the holding as the inevitable and logical result of constitutional principles: If owning private property includes the right to exclude others, then allowing others to come in must count as a taking of private property.

Liberals, in contrast, will see the court’s decision as classic conservative judicial activism. The conservative justices announced a new interpretation of the Constitution in order to overturn a law that has been on the books for well over a generation.

The fact that the conservative interpretation of the Constitution purports to protect private property fits perfectly with a familiar historical mode of conservative activism. Where liberals see permissible government regulation to help labor against capital, conservatives see infringement on the fundamental property rights of landowners.

When the court finds a constitutional taking, it doesn’t automatically follow that the government may not take the property. All the Constitution requires is that the government pay just compensation when it exercises the power of eminent domain. That leaves the intriguing question of what would count as just compensation for the growers in exchange for the union organizers’ access.

The majority opinion managed to ignore this question entirely. It ended simply by remanding the case to the lower courts to figure out what to do next. Since the growers did not ask for damages, but for a court order blocking the law from being in operation, that may mean the law is effectively overturned, a total win for the growers.

Breyer, for his part, noted that, even under the majority opinion, California should in principle have the option of keeping the law in place and paying just compensation for access. That in theory would leave it to the lower courts to decide how much damages, if any, the growers are experiencing as a result of the access.

In practice, the courts may never address this intriguing question. But the possibility that the court’s decision will end in the law being effectively rescinded underscores the ideological nature of the conservative majority’s ruling.

The upshot is that the conservative majority is still perfectly capable of engaging in activism when it chooses. Watch this space.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at

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