Supreme Court Nominee Amy Coney Barrett Is an Enemy of Workers

In August, Trump nominee Amy Coney Barrett delivered a key ruling blocking many gig workers from suing in court when tech companies deny them overtime pay. It's just one in a long history of decisions that favored corporate interests.

Seventh US Circuit Court Judge Amy Coney Barrett speaks after Donald Trump announced that she will be his nominee to the Supreme Court, at the White House on September 26, 2020 in Washington, DC. (Chip Somodevilla / Getty Images)

Just weeks before President Donald Trump reportedly selected her to fill the new Supreme Court vacancy, Judge Amy Coney Barrett delivered a ruling that could help corporations evade long-standing laws requiring them to provide overtime pay to their workers.

That ruling was one of a number of cases in which Barrett helped corporate interests prevail over workers. Her highest-profile business-focused actions on the federal bench have limited the enforcement of age-discrimination laws, restricted federal agencies’ power to punish companies that mislead consumers, and reduced consumers’ rights against predatory debt collectors, according to a recent report from the Alliance for Justice.

Barrett’s August ruling in the overtime case is particularly significant: it comes as technology companies have been trying to use mandatory arbitration clauses to avoid better remunerating so-called gig workers. Those provisions often force worker disputes to be decided by private arbitrators handpicked by the companies, rather than in an impartial court of law.

Corporate lobbying groups in Washington focused on court nominees have long been promoting forced arbitration as a way to prevent workers from exercising their rights through class action lawsuits.

In the coming years, the Supreme Court could play a pivotal role in deciding whether existing worker protection laws apply to the larger and larger share of American workers that companies are trying to subject to mandatory arbitration and classify as independent contractors — even when those workers are toiling full-time for those employers.

Barrett Helped Companies Crush Gig Economy Workers

In the August case, the issue before Barrett — which she could ultimately end up adjudicating at the Supreme Court — revolved around Grubhub delivery drivers’ allegations that the company had violated federal law by not paying them overtime. It also involved the company’s effort to deny workers an impartial forum to adjudicate the dispute through mandatory arbitration agreements.

Drivers were required to sign agreements with Grubhub barring them from suing in court for “any and all claims” arising out of their work. When workers filed a suit against the company for not paying overtime, Grubhub sought to enforce the provision order.

The drivers countered by arguing that the provisions are unenforceable under an exemption in the century-old Federal Arbitration Act (FAA) for transportation workers “engaged in interstate commerce.”

“Certainly when Congress enacted the FAA, it never foresaw that it would be used to stop drivers for a major national delivery company from challenging their employer’s systematic violation of wage laws,” the drivers’ attorneys argued.

Unbound by a smattering of appellate and lower court rulings on the matter, Barrett had a decision to make that would govern the use of mandatory arbitration agreements — which are perhaps the single greatest obstacle to gig workers attempting to enforce their employment rights, as they prohibit class action lawsuits.

With only one Supreme Court decision from 2001 holding the FAA exemption applied to “transportation workers” as binding precedent, Barrett could have come down on the side of the workers — but in Wallace v. Grubhub Holdings, Inc., she instead forcefully sided with Grubhub. Barrett held that the drivers were not “a class of workers” who typically engage in interstate commerce and therefore are not protected by the exemption for transportation workers.

“The plaintiffs in today’s case . . . completely ignore the governing framework,” she wrote. “Rather than focusing on whether they belong to a class of workers actively engaged in the movement of goods across interstate lines, the plaintiffs stress that they carry goods that have moved across state and even national lines.”

University of Wyoming law professor Michael Duff told the Daily Poster that Barrett’s decision was “long on ‘textualism’ but short on consideration of the implications of applying text mindlessly.”

“Mandatory arbitration under the Federal Arbitration Act is the ‘informal forum’ where the legal claims of ordinary workers and consumers all too often go to die,” said Duff, a former investigator at the National Labor Relations Board. “Barrett’s opinion reflects little policy interest in the fact that by 2024 more than 80 percent of private-sector, nonunion workers may be covered by forced arbitration clauses.”

A law firm that represents employers celebrated the decision as one that will continue to empower mandatory arbitration agreements to bar workers from suing in court for their rights.

“This ruling is terrific news for gig economy businesses,” wrote Fisher Phillips attorney Richard Meneghello. “They can feel comfortable that all workers whose jobs do not center on the interstate movement of goods will be subject to any valid arbitration agreements they have entered into.”

Barrett’s Views on Social Issues

Barrett has also come under fire for her views on abortion.

In 2012, for example, she signed onto a letter condemning the Affordable Care Act’s birth control mandate as immoral, along with the Obama administration’s efforts to carve out an exception to it. In the two abortion rights cases she has presided over, she has signaled openness to restrictions.

On guns, too, Barrett has raised eyebrows. In the 2019 case of Kanter v. Barr, in which a former felon, who had previously been convicted of mail fraud, argued for his Second Amendment right to own a gun, Barrett wrote a dissent arguing that because he had not committed a violent felony, he ought to be allowed a firearm. The opinion went against long-established judicial consensus.

In the late ’90s, Barrett held two clerkships with high-profile conservative judges — Judge Laurence Silberman of the US Court of Appeals for the District of Columbia Circuit and the late justice Antonin Scalia.

At a corporate law firm, she worked on the Bush v. Gore case, which handed the 2000 election to the GOP.

From there, she went onto George Washington University as a fellow of law and economics, a theory that came out of the University of Chicago and incorporates market principles into legal analysis. In the mid-aughts, she became a member of the right-wing Federalist Society, which grooms conservative lawyers and judges. In May 2017, Trump appointed her to the appellate bench.

You can subscribe to David Sirota’s investigative journalism project, the Daily Poster, here.

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Walker Bragman is a journalist and JD whose work has been featured in Paste Magazine, the Intercept, HuffPost, the Independent, Salon, Truthout, and the Hill.

David Sirota is editor-at-large at Jacobin. He edits the Daily Poster newsletter and previously served as a senior adviser and speechwriter on Bernie Sanders's 2020 presidential campaign.

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