• April 14, 2015
    The Workplace Constitution
    from the New Deal to the New Right
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • April 14, 2015

    by Caroline Cox

    Today is Equal Pay Day, and Catherine Rampell explains in The Washington Post why the fight for equal pay still matters in the United States. 

    In The New York Times, Adam Liptak discusses no major law firms have elected to come out in favor of the case against same-sex marriage. 

    David H. Gans considers the originalist case for same-sex marriage at the Text & History Blog of the Constitutional Accountability Center and argues that the Fourteenth Amendment was written "as a broad guarantee of equality for all."

    At Salon, Heather Digby Parton writes about another less-discussed facet of the Walter Scott tragedy: the overzealous use of Tasers in North Charleston.

    Elizabeth Stoker Bruenig argues in The New Republic that recent comments from Rand Paul on abortion illustrate why both sides need to carefully consider the implications of abortion penalties. 

  • April 13, 2015

    by Caroline Cox

     In USA Today, Richard Wolf profiles Jim Obergefell, one of the lead plaintiffs in the same-sex marriage cases before the Supreme Court.

    Chris Johnson, writing for The Washington Blade, reports that a group opposing same-sex marriage has requested that the Supreme Court review the Ninth Circuit’s decision that invalidated Nevada’s ban on same-sex marriage.

    Gabe Roth of MSNBC considers the problems plaguing the Supreme Court and how reforms – such as allowing “broadcast technology” – could increase public confidence.

    In a new edition of Slate’s Amicus podcast, Dahlia Lithwick discusses how the Supreme Court came to take up the issue of  same-sex marriage and what to expect from the cases.

    The National Resources Defense Council announces a nationwide event to discuss clean energy and how it can help the most vulnerable in the United States.

  • April 10, 2015

    by Caroline Cox

    Judicial vacancy numbers continue to rise, but there is little movement in the Senate to address the problem. A recent report from the Alliance for Justice shows how “the Republican Senate’s failure to fulfill its constitutional duty extends beyond the languishing attorney general nomination.”

    The announcement that Sen. Harry Reid (D-Nev) will not seek reelection has prompted many commentators to reflect on his record and his role in filibuster reform. At The Hill, Juan Williams considers how Reid helped the judicial nomination process during his tenure.

    As Senate Republicans delay the nominations process, it’s becoming clear how important federal courts are to major public policy decisions. At The New Yorker, Jeffrey Toobin considers how the courts have challenged much of President Obama’s policy agenda.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 16 pending nominees. For more information see

  • April 10, 2015

    by Caroline Cox

    Judith E. Schaeffer of the Constitutional Accountability Center writes in The Louisville Courier-Journal about an important marriage equality anniversary.

    In The New Yorker, Richard Socarides considers what a ruling in favor of same-sex marriage would mean for LGBT rights more broadly.

    Mark Joseph Stern of Slate criticizes South Carolina’s amicus brief recently filed with the Supreme Court that argues that the Constitution permits discrimination against women and therefore “must surely allow discrimination against gay people.”

    Richard Wolf of USA Today examines the current case against Oklahoma’s death penalty procedures and the likelihood of a victory for death penalty opponents.

    The Constitutional Accountability Center has announced an April 30 panel discussion of the major themes emerging from the Supreme Court's term. Paul M. Smith, a partner at Jenner & Block and a member of the ACS Board of Directors, will participate in the discussion.