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The Supreme Court just handed down disastrous news for unions

The Court’s new union-busting decision reads like something out of Ayn Rand’s darkest fantasies.

Then-President Donald Trump shakes hands with Chief Justice John Roberts in 2017.
Jim Lo Scalzo/EPA/Anadolu Agency/Getty Images

Since 1956, the Supreme Court has applied a well-established framework to businesses that wished to exclude union organizers from their property. On Wednesday, however, the Court effectively scrapped that framework — one that was already fairly restrictive of union organizing — and replaced it with something far more restrictive.

In the process of deciding Wednesday’s case, Cedar Point Nursery v. Hassid, the Court also rewrites much of its existing Fifth Amendment law. Then it adds caveats to its new rule that resemble the reasoning behind an infamous anti-labor decision from more than a century ago. The Court’s decision is rooted in value judgments about what sort of regulations are desirable and what should be forbidden — namely, those protecting workers’ rights. And it was handed down on a party-line, 6-3 vote.

Thus far, the Supreme Court’s first term since Justice Amy Coney Barrett’s confirmation gave conservatives a supermajority has been a fairly mixed bag. The Court rejected a frivolous attack on the Affordable Care Act and has sent mixed messages about how fast it plans to move its religion jurisprudence to the right.

But Cedar Point is a sign the radical new conservative regime that many Republicans crave and that liberals fear could actually be upon us. The Court fundamentally reshaped much of American property law in Cedar Point. It did so in a party-line vote. And it did so in a case involving labor unions — institutions that are often celebrated by liberals and loathed by conservatives.

The case involves a nearly half-century-old California regulation, which gives union organizers limited, temporary access to farm worksites. Under this regulation, a union may enter such a worksite for up to 30 days at a time, and it may invoke this right up to four times a year. On the days when the union is permitted to enter, it may only speak to the workers for three hours a day — the hour before the start of work, the hour after the end of work, and the workers’ lunch break.

Thus, union organizers are allowed on a farm’s property for a maximum of 120 days a year, and for a total of only three hours per day. And the union also must notify the employer when it wishes to invoke this right.

But the right of unions to enter onto a California farm to organize workers is now in deep trouble. In an opinion penned by Chief Justice John Roberts, the Court held that California’s longstanding regulation violates the Constitution’s “takings clause,” which provides that no one shall have their property taken from them by the government “without just compensation.”

And, in order to reach this result, Roberts rewrites decades of law interpreting that clause.

The Court’s new interpretation of the takings clause is extraordinarily deferential to property owners

Before Wednesday, the Court distinguished between two different types of violations of the takings clause. “Per se” takings involved unusually severe intrusions on private property — such as if the government strips a plot of land of all of its economic value — and were treated with particular skepticism by courts. Less severe intrusions, meanwhile, were classified as “regulatory” takings.

Property owners subject to a per se taking nearly always prevail in court, while property owners alleging a regulatory taking are much less likely to succeed — even when the government imposes fairly strict limitations on how they can use their property. In one famous regulatory takings case, the Court upheld a New York City law preventing the owners of Grand Central Terminal from constructing a high-rise office building on top of the station.

Because the Court views per se takings with such extraordinary skepticism, past decisions held that very few intrusions on private property qualify as such. A per se taking did not occur unless the government deprived a property owner of “all economically beneficial or productive use” of their property, or subjected the property owner to a “permanent physical occupation” of their land.

Thus, California’s regulation did not qualify as a per se taking prior to Cedar Point, as the presence of union organizers does not strip a worksite of all of its economic value, and the regulation did not allow those organizers to permanently occupy a worksite. It only allowed them to enter the property for three hours a day, and for only about a third of the year.

Roberts’s opinion didn’t eliminate this distinction between regulatory and per se takings altogether, but it significantly blurred the line. Under the new rule announced in Cedar Point, any law or regulation that “appropriates a right to invade” private property amounts to a per se taking. If California allowed union organizers to enter an employer’s land for a single minute, then California committed a per se taking.

“The right to exclude is ‘one of the most treasured’ rights of property ownership,” Roberts writes. And much of his opinion suggests that any intrusion on this right to exclude amounts to a taking.

But then Roberts’s opinion takes an unusual turn, in an apparent effort to ward off some of the radical implications of its expansive vision of per se takings.

Roberts isn’t willing to live with the implications of his opinion for cases that don’t involve unions

One problem with Roberts’s expansive view of the takings clause is that it could prevent the government from performing very basic functions, such as health and safety inspections.

Suppose, for example, that a restaurant has a disgusting, rat-infested kitchen that violates numerous local health ordinances. The restaurant’s owners obviously do not want these violations to be discovered, so they refuse to admit any government health inspectors. Under Roberts’s reading of the takings clause, it’s not clear why the restaurant owner should not be allowed to do so — or why it shouldn’t be able to, at the very least, demand compensation from the government before health inspectors can be allowed on their property.

After all, if “the right to exclude is ‘one of the most treasured’ rights of property ownership,” why should an employer be allowed to exclude union organizers but not health inspectors?

Indeed, as California warned in its brief, the expansive vision of the takings clause laid out in much of Roberts’s opinion “would also imperil a wide variety of health- and safety-inspection regimes” (including “food and drug inspections, occupational safety and health inspections, and home visits by social workers”) as well as a federal law providing that “underground mines must be inspected ‘at least four times a year.’”

Roberts’s opinion recognizes that it would be untenable to hold that health and safety inspections violate the Constitution, so he carves out a special rule allowing such inspections to stand. “The government may require property owners to cede a right of access as a condition of receiving certain benefits,” such as a license to operate a business, Roberts writes, so long as that condition “bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property.”

Those are some very large and very vague words, and it’s not entirely clear what it means for an inspection requirement to be roughly proportional to “the impact of the proposed use of the property.” Nor is it clear why, if the government can require restaurants to admit health inspectors as a condition of doing business, it can’t also require that restaurant to admit union organizers as a condition of employing workers.

The Court has simply made a value judgment here. It views health inspections as sufficiently important to justify creating an exception to its new understanding of the takings clause, but it doesn’t view protecting a worker’s right to organize as important enough to justify a similar exception.

There is precedent for this kind of thinking. In Lochner v. New York (1905), an infamous Supreme Court decision often taught in law schools as an example of how judges should not behave, the Court drew a similar line between laws intended to protect health and laws intended to protect workers from abuse.

Lochner struck down a New York state law limiting the number of hours that bakery workers could work in a given day or week (at the time, workers were typically paid by the day or by the week, so working additional hours did not mean more pay). In reaching this conclusion, the Court held that laws intended to “conserve the morals, the health, or the safety of the people” are typically valid, but laws intended to regulate working conditions are far more suspect.

But Lochner is now widely viewed as a terrible misstep by the Supreme Court, and even Roberts accepts this view of Lochner. Dissenting in Obergefell v. Hodges (2015), Roberts denounced “the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York.”

And yet, just six years after his opinion in Obergefell, Roberts is engaged in the very same kind of “judicial policymaking” — judging rooted in a judge’s personal value judgments rather than in law or precedent — that he once decried.

So what happens now?

There is one potential silver lining for the unions impacted by Cedar Point. The takings clause does not forbid the government from restricting property rights, it merely requires the government to compensate property owners when it violates the clause. And it’s not at all clear how much compensation the farm owners should be due here.

Indeed, at oral argument, Barrett suggested that farm owners may only be entitled to as little as “50 bucks” to compensate them for the cost of having people present on their land whom they’d rather exclude.

Maybe Barrett’s view will prevail. But another way to look at how much these property owners should be compensated is to ask how much money they stand to lose if unions are allowed on their land. A union that enters onto a worksite might successfully unionize that site, and then secure a collective bargaining agreement that requires the employer to pay hundreds of thousands of dollars in additional compensation to its workers. Perhaps the state should have to compensate the employer for all of these costs?

In any event, the question of how much compensation is due to these farm owners will no doubt be litigated — at considerable cost to both the unions and to the state. And it’s far from clear how that litigation will end. Because of this uncertainty, California is likely to stop enforcing its pro-union regulation, at least for now, because it has no way of knowing how much enforcing it will cost the state.

And at the very least, the Court has revolutionized its understanding of the takings clause. And it did so in an opinion that applies an extremely skeptical rule to pro-union regulation while it simultaneously creates carveouts for regulations that the Court’s conservative majority supports.