In response to the Trump administration’s efforts to deny the existence of transgender people and erase them from public life, many brave transgender people and their allies went to court. Those lawsuits are already starting to pay dividends as judges recognize what is all too plain: Trump’s efforts to scapegoat transgender people are rooted in nothing more than a discriminatory bare desire to harm and, if implemented, will inflict irreparable injury on transgender people.
Earlier this month, a federal court in Maryland enjoined the Trump administration’s attempts to revoke federal funding for any entity that provides gender-affirming care to people under the age of nineteen. In addition to concluding that the President lacked the unilateral authority to impose new conditions on congressionally-approved funding and therefore usurped Congress’s power, the court concluded that the attempt to ban gender-affirming care discriminated against people on the basis of their transgender status and likely violated the equal protection clause as a result. The court observed that denying children needed medical care would not help the children, as the government conjectured, but instead would cause them to suffer.
The Maryland decision builds off one out of Washington. In Washington v. Trump, another federal court concluded that the funding revocation related to gender-affirming care was both beyond the scope of Trump’s power and infringed individual freedom. The court pulled no punches, concluding that the government was “deny[ing] the very existence of transgender people and instead seek[ing] to erase them from the federal vocabulary altogether and eliminate medical care for gender dysphoria at federally funded medical institutions.” As the Supreme Court has recognized, such “[a] bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
In a series of cases filed by incarcerated transgender people, another federal court enjoined Trump’s order that all federal inmates be housed according to their sex assigned at birth (what the order refers to as their purportedly binary “immutable biological classification as either male or female”) and denied critical medical care. The Reagan-appointed judge reasoned that the plaintiffs were likely to succeed on their Eighth Amendment claims for deliberate indifference because housing plaintiffs in a facility inconsistent with their gender identity would exacerbate their gender dysphoria, as would denying them their medical care. This, the court concluded, would result in irreparable harm to the plaintiffs justifying the injunction.
In one of the cases challenging the Trump administration’s effort to ban transgender people from serving in the military, the presiding judge gave an unvarnished assessment of the Trump administration’s discrimination during a hearing. According to Judge Ana C. Reyes, the animus motivating the trans military ban is in the very text of the ban itself. The Executive Order’s text calls all trans people selfish liars: “A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” Judge Reyes suggested that calling “an entire category of people dishonest, dishonorable, undisciplined, immodest” was evidence of unconstitutional animus, particularly when talking about “people who have taken an oath to defend this country, people who have been under fire, people who have received medals for taking fire for this country.” Consequently, Judge Reyes granted a preliminary injunction against the military ban, concluding that the ban “is soaked in animus and dripping with pretext. Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact,” while also concluding that the ban was an improper form of sex discrimination.
The reasoning of these courts builds off decades of jurisprudence protecting transgender people from intentional discrimination—including the Supreme Court’s own decision in Bostock v. Clayton County, protecting transgender people from employment discrimination under Title VII of the Civil Rights Act of 1964.
Of course, there is a long road ahead and lower courts have yet to reach decisions in several pending cases regarding the Trump administration’s anti-transgender orders, including the ban on passports and participation in women’s sports. And there is no guarantee that the current Supreme Court will ultimately agree that the anti-trans executive orders are just that—anti-trans. But early indications suggest that federal courts are going to be an import bulwark—even if not ultimately a panacea—for protecting transgender rights and recognizing the humanity of transgender lives.
It is no secret we have seen a growing trend of autocratic regimes manipulating democratic institutions to assume lasting, undemocratic control over governments. One of the more recent autocratic takeovers of a formally democratic government was in Hungary by Viktor Orban. Others include Russia’s Vladimir Putin, Turkey’s Recep Tayyip Erdoğan, and Venezuela’s Nicolás Maduro. These individuals have taken the reigns of their national government with the help of complicit legislatures and judiciaries. As we have recently learned, these methods are not limited to taking control of federal governments.
We now know autocratic control can be exerted over a state government and without taking direct control of its executive branch. In the United States, we are seeing this through extreme state partisan gerrymandering. With blessings from the U.S. Supreme Court, North Carolina has become the poster child for shifting power from government for the people by the people — democracy — to government for the few by the few — autocracy.
The Legislature Does Its Part: Extreme Partisan Gerrymandering
In the 1990s and 2000s, North Carolina state legislative districts were drawn in a manner that led to control of the statehouse changing parties fairly regularly. But since 2010, Republicans have consistently controlled the statehouse and, heading into the 2024 election, Republicans controlled 72 of 120 state house seats while controlling 29 of 50 state senate seats. Partisan gerrymandering created a political environment which allowed autocracy over democracy. No governor could stop the Republicans as they maintained a three-fifths supermajority over any gubernatorial veto in both houses.
At the national level, gerrymandering gave Republicans control of the nation’s House of Representatives. As North Carolina’s former Congressman, Democrat Wiley Nickel put it, the “process [of gerrymandering] has reshaped the balance of power in Washington D.C., costing Democrats control of the U.S. House of Representatives.” Statewide, the North Carolina electorate voted evenly, with fifty percent of the vote going to Democrats running for the U.S. House of Representatives and fifty percent to Republicans running for the house. This should have meant a close to even split of the 14 House seats apportioned to North Carolina, but the Republican controlled state legislature’s gerrymandering resulted in sending 11 Republicans to Washington while only sending three Democrats.
Removing Executive Checks and Balances
In this last election cycle, North Carolina elected a Democratic governor, lieutenant governor, secretary of state, and attorney general, while electing Republicans for other offices in the state’s executive branch, such as treasurer, auditor, and commissioner labor. The electorate also broke the legislative super-majority Republicans had held in the statehouse by one vote and nearly won several other seats in closely contested races, a sign the state is moving left. Recognizing the democratic power shift about to occur at the new term, the Republicans — who still maintained a super-majority before the new General Assembly could be sworn in — doubled-down on their efforts to undemocratically retain power into the future.
Republicans passed a hurricane relief bill that also stripped the Governor of executive authority including the power to appoint the State Board of Elections (transferring it to the state auditor who is now a Republican); limited the governor’s authority to fill Court of Appeals and Supreme Court vacancies; and, shortened the time to count provisional and absentee ballots to a point where all validly cast votes may not be counted. This was in addition to another bill removing the Governor’s ability to name his own commander of the state highway patrol effectively stymying his executive power to faithfully execute the laws of the state. The state highway patrol commander would effectively be unaccountable and there would be no executive chain of command for the Governor during a crisis.
Next, in the same hurricane relief bill, the Republican controlled legislature stripped the Attorney General of the power to challenge any law passed by the General Assembly effectively giving the legislature carte blanche law making ability. So, despite an electorate that appears to be moving left despite gerrymandering, Republicans continue with various power grabs which eat away at the rule of law and re-enforce autocratic government.
Because the challenge does not involve fraud, by his actions the candidate is saying to eligible North Carolinian citizens, “Your votes don’t count. You don’t count.” This is a bizarre, harmful course of action not least of all because this is a person seeking to be a justice on the highest court in the state. To be a judge, it would seem, should at least require “good judgment” and a sense of “justice,” two characteristics this sore loser is not demonstrating. Yet, the attack on the votes of real fellow North Carolinians continues with no protest from state Republican leadership.
Perhaps even more distressing, there is real likelihood that the five-to-two Republican-controlled state supreme court (with current Democratic Justice Allison Riggs recusing herself) could eventually rule to overturn this election in what would be a nakedly partisan power grab. Since judicial terms are eight years, this might push back any possibility of Democratic control over the court and the legislature another eight years despite voting results indicating a strong move to the left.
North Carolina is a blueprint for how to get it done. There is a process one political party is pursuing in North Carolina whereby (much like Hungary and other autocracies) they are dismantling the rule of law by severely weakening or eliminating state government’s checks and balances and violating individual voting rights by gerrymandering or tossing validly cast votes with no evidence of fraud.
The state’s system of government — a democracy — cannot survive in an environment where one branch of government strips the power away from another branch to put its own policies into practice with no chance at compromise, or, through gerrymandering, tips the voting scales in its favor, defying the will of the people. That’s an autocracy and one ‘The Founders’ reviled by virtue of the government they created.
James "Jim" Saranteas is a practicing attorney of 25 years with experience at the trial and appellate levels in civil litigation. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. Saranteas assists Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.
In 1951, a member of the Women’s Auxiliary Air Force who had been discharged for being gay wrote to the American Civil Liberties Union:
“[N]obody asked Squadron Commander about my character, nobody asked my work if I did my work well. (They, by the way, when I asked them for a recommendation for a civilian job, told me to write my own if I was in a way displeased with theirs-they recommended me without qualification)[.] To all this no attention was paid. To Washington, I was a non-entity with a homosexual contact. I ask you, for all those girls left, is this fair?-is it in keeping with the principles we shout so loud? How efficient can our armed forces be, with this sort of psychological warfare raging within? As an individual, I'm powerless; as an organization, can you help them?”
This letter, begging for help, was sent at a time during which witch hunts against lesbian women within the United States military were reaching an all-time high. The ACLU at the time unfortunately refused to provide the legal assistance requested, perhaps in part because of the chilling effect caused by anti-gay policies backed by the U.S. military and federal government.
Over seventy years later, with the recent chipping away of programs and policies designed to ensure the full inclusion of LGBTQ+ service members and federal workers, it is more important than ever that we acknowledge and grapple with the history of discrimination during the McCarthy era. Only by understanding the past can we work to ensure a future that avoids its failures and safeguards everyone against discrimination.
The author of the letter, the fourth woman to be discharged from her station at Wright-Patterson for being gay, wrote that she knew the women she’d left behind lived “in constant terror of the telephone.” Service members who were targeted for discharge because they were suspected of being gay often received discriminatory abuse while awaiting discharge. One individual interviewed for the book Coming Out Under Fire: The History of Gay Men and Women In World War Two recalled being forced to eat out of trash cans and facing sexual harassment at the hands of guards while being held at a brig in San Francisco. Such brigs that were often referred to as “queer stockades.”
Once discharged, these service members were ineligible for typical veteran benefits, and because discharge records were public, it was difficult for these and other similarly discharged service members to find employment outside of the armed forces.
The fear LGBTQ+ service members during the 1940s and 1950s carried echoes of the fears current transgender service members express in the face of recent policy changes. While a U.S. judge recently requested that six transgender service members who filed suit to stop the new policy from being implemented not be removed prior to court proceedings, it is unclear what the future holds for LGBTQ+ service members across the United States.
A sense of fear and paranoia was deeply woven throughout policy in the 1940s and 1950s. After World War II, new recruits were subjected to lectures expressing increasing hostility towards LGBTQ+ people, going so far as attempting to tie homosexuality to grisly murder cases involving women and children. The lectures would also point out that LGBTQ+ people, which they labeled as “dangerous sexual psychopaths,” had been discovered within the ranks of the military during the war and were promptly discharged. While previously considered a moral threat, members of the LGBTQ+ community were more and more being characterized as a legitimate danger to country and national security, which ultimately led to the Lavender Scare and the Senate Hearings of the 1950s. In the absence of concrete evidence that gay service members acted in a way that was a genuine threat to security during and after World War II, lawmakers were tasked with building a defense of their discriminatory treatment based on hypotheticals and possibilities.
Without evidence that U.S. military efforts have been endangered by the presence of transgender service members, the rationale for exclusionary policy remains unclear.
The result of 1940s/1950s Senate hearings, investigations, and reports on gays in the military and federal government was catastrophic to not just gay individuals wishing to serve in the military, but those wishing to work in any government job at all. Discharge of gay government employees saw a sharp increase throughout the 1950s. Journalists such as Max Lerner for the New York Postdrew a direct comparison between these discharges and the discharges of service members during World War II. This systemic ostracization laid the groundwork for subsequent modern policies like "Don't Ask, Don't Tell," which weaponized shame to force service members into the closet.
While recently unveiled policies appear to target transgender individuals, without reference to other queer identities, the broader implications of these policies remain uncertain. In an overhaul of federal websites, a Labor Department webpage with information about discrimination based on sexual orientation was completely erased. Additionally, within the text of an order on the topic of transgender individuals, there is language challenging the ruling of Bostock v. Clayton County, which prohibited not just discrimination based on gender identity, but discrimination based on sexual orientation as well. The text of the executive order regarding Bostock instructs the Attorney General to counsel agencies on correcting “the misapplication” of the Supreme Court’s rule to sex-based distinctions in agency activities. And while the intent of this directive is framed in language appearing to simply encourage clarity in policy implementation, advocates have raised concerns about the potential fallout of Bostock challenges.
As policy changes continue to emerge, it is vital to equip ourselves with a better understanding of the attacks, persecution, and discrimination members of the LGBTQ+ community have endured at the hands of our government throughout history. We must utilize that knowledge to ensure history doesn't repeat itself.
Military service and service to the federal government are a selfless sacrifice one makes to their country; a sacrifice that should ensure individuals are treated with dignity in service regardless of their sexual orientation or gender identity. While Defense Secretary Hegseth appears to be cognizant of this deserved dignity, going so far as to make mention of it in a recent memo disallowing the enlistment of transgender individuals into the military, the fact remains that recent policy changes signify a return to a dark chapter in America’s history of mistreating the LGBTQ+ community.
The U.S. Supreme Court’s reputation is like the 1980’s sitcom “Night Court.” There is chaos. But it’s not funny. This essay focuses on four recent, but confused, originalist-related decisions to prove its case that the conservative majority’s preferred interpretive method is at the root of this dysfunction. Then the essay argues that a solution to the Court’s interpretive problems is the use of a two stage “new pragmatism.” Pragmatism means the Court is reasonable, pluralist, and seeks the best result, not ideological absolutes. Think William James and his treatise, Pragmatism: A New Name for Some Old Ways of Thinking. Interestingly, most of my constitutional law colleagues admit privately that they want to see judges being more pragmatic.
Now, I acknowledge that former U.S. Supreme Court Justice Breyer has just written a book advocating pragmatism. But the approach here differs. Nonetheless, it is encouraging to see burgeoning scholarship taking this view, such as those put forward by Daniel Farber, Jamal Greene, Suzanna Sherry, and Robert Tsai.
One major problem with the four cases I highlight here—the four horsemen of the originalism apocalypse if you will—is arbitrariness. In 2022, the Court, in Dobbs v. Jackson Women’s Health Organization, misused history and overturned Roe v. Wade, rejecting a 50-year-old fundamental right to abortion. The majority found “that the right to abortion is not deeply rooted in the Nation’s history and tradition,” but constitutional scholars and litigator David H. Gans counters that the “rights to control one’s body, establish a family, and have children—all deeply rooted in the Fourteenth Amendment’s text and history—necessarily safeguard the right to abortion as a fundamental right.”
In 2023, the Court barely mentioned originalism while authoring its seismic decision in Students for Fair Admissions v. Harvard, outlawing affirmative action in university admissions. The Court's omission was essential because the Freedman's Bureau of the 14th Amendment period was designed to affirmatively help the newly freed slaves.
Originalism, malleability, and inconsistency were again on display in 2024, in the Court’s decision in United States v. Rahimi. In that case, the Court upheld a law that banned individuals subject to domestic restraining orders from owning firearms. This was a liberal result but was reached on originalist grounds. Nonetheless it further showed that the Court was inconsistent on originalism. Justice Clarence Thomas dissented, stating, “Not a single historical regulation justifies the statute at issue,” thereby disagreeing with Chief Justice Roberts and Justice Amy Coney Barrett.
Finally in Trump v. United States, the Court rendered a surprisingly policy-oriented decision in broadening the criminal immunity of the President. Chief Justice Roberts decided that the President was immune for criminal acts at the outer perimeter of his official duties and the core of his official duties. He reasoned that easily criminally prosecuting the President was a huge separation of powers intrusion. It might deter the President from acting in the best interest of the nation. Yet this would seem to place the President above the law.
To sum up, a supposedly institutionalist, Chief Justice John Roberts has actually created an activist, politicized Court that eagerly reverses precedents and bypasses stare decisis. A comment in the Harvard Law Review asserted that, “today’s Supreme Court serves as a useful specimen for studying the manipulability of stare decisis.” The problem is that public opinion polls show that the Court’s overall rating has declined dramatically, and perceptions that the Court is political have risen. The Court is not elected so these changes are very dangerous for its legitimacy. Even before these decisions, commentators, legislators, the president, and even judges discussed the need for Court reform, especially getting rid of life tenure, the need for ethics rules, and perhaps even expanding the number of Justices, in a 2021 report by the Presidential Commission on the Supreme Court of the United States. Calls for reform, particularly ethics reform, have only increased in the wake of these decisions along with reporting that Justice Thomas and others have for years accepted lavish gifts and trips from wealthy patrons.
The Court’s decisions have had dreadful consequences. Conservative former Congresswoman Liz Cheney agrees. For example, women have diedunder new restrictive state abortion laws. Many universities have shut out more minorities. And that means the judges, the lawyers, and police in our criminal justice system will remain all too white and the institutions in which they work will remain all too dysfunctional. There is an operational need for diversity in law enforcement, as Vanita Gupta, former U.S. Associate Attorney General, recognizes. While previously serving as Head of the Civil Rights Division, she noted that “following our investigation of the Ferguson Police Department – where African Americans make up roughly 67 percent of the city’s population but, earlier this year, accounted for less than 8 percent of its police force – our report addressed the connection between the department’s lack of racial diversity and undermined community trust.” Moreover, the Court disagrees about its own originalism. And the nation has a corrupt former President who, thanks to this Supreme Court, now has more power to commit crimes after winning a second term in office. What a combination.
To forestall further reputational and precedential damage and restore some faith in the judiciary, the Court should instead adopt a two-part practical method for deciding constitutional cases. In the first stage, the Justices should examine all the major modalities of constitutional interpretation, such as text, precedent, originalism, structural principles, and morality (think Philip Bobbitt). The Justices in a particular case should rank the strength of both sides’ arguments in each of these areas. One model, though not the only available, would be to use a grid with one to ten scores for each modality as a guidepost. Political scientists have certainly used numerical data already to assess certain aspects of the Court’s decisions.
After stage one, the Court would reach a preliminary conclusion. But in stage two, the Court would engage in an open-minded, inductive, transparent, contextual, and empirical determination of which result makes the most sense. The Justices would also engage in balancing the interests of the two sides as part of this analysis. Admittedly, the pragmatic result would usually prevail, but not always if some other modality scored very high. The Court could also use a numerical grid here, whether openly or not.
To put it bluntly, the Supreme Court is deciding “cases or controversies” and law is a practical science. The Court should therefore seek the best concrete result and use the finest possible method for getting there. Pragmatism is also a uniquely American approach as seen in the work of the previously mentioned William James and John Dewey.
Of course, the Justices will disagree profoundly along the way, including about which result is most pragmatic. But the Court would avoid the medieval, formalistic, and syllogistic debates over originalism that can’t justifyBrown v. Board of Education, and that can’t justify using the Fourteenth Amendment to protect women from discrimination. Instead, the Justices will take into account all of the major modalities, and focus on the one leading to superior results, pragmatism. To the extent this seems subjective, it’s called judging.
It is no secret that attorneys have been behind the greatest take-overs of democratic governments in modern times using their legal skills to put autocratic regimes into power. One of the more recent democratic government take-overs was Hungary by Viktor Orban, assisted by attorneys, as chronicled by Professor Kim Lane Scheppele in “Autocratic Legalism.” Attorneys rewrote the country’s constitution and election laws to guarantee power to Orban’s political party. As to the latter, we are already seeing this in the United States through extreme state partisan gerrymandering, with blessings from the U.S. Supreme Court. As to the former, implementation of Project 2025 would transform the executive branch of our federal government and presumably come with legislation to make its agenda law of the land.
Hungarian attorneys also made successful legal arguments in support of authoritarian policies. Hungarian attorneys loyal to Viktor Orban were appointed judges. All these attorneys helped dismantle the rule of law and weakened their government’s checks and balances.
The same thing is happening here in the United States. Civil rights like voting rights and reproductive rights have been set back fifty to seventy years. Judges now interfere in policy decisions better suited, and constitutionally delegated, to the executive branch. Bribery is legal if it is done after-the-fact. And a President’s criminal conduct can be immunized if it is loosely within the purview of his Presidential powers. The actions of the lawyers and judges who argued and ruled for these changes will have far-reaching consequences beyond some minimal change to social order.
‘Big Lie’ Emboldens Attack on Rule of Law
The most significant attack on our constitutional government occurred on January 6, 2021, when former President Donald Trump convinced many Americans that he, and not Joe Biden, won the 2020 election. Trump manipulated these Americans into believing their votes were not counted or completely discarded, and for believing him, many were indicted, arrested, convicted by a jury of their peers, and sentenced to jail time. Trump was assisted by many Congressmen and Senators, many of whom are attorneys, in his effort. And for the insurrectionists’ part, it is expected they will be freed now that Trump is President once again.
A democracy is not a democracy if the populace cannot choose (or believes it cannot choose) its elected officials in a representative government. A democracy is not a democracy if the populace cannot also rely on the rule of law. Otherwise, it becomes an autocracy much like Orban’s Hungary or Vladmir Putin’s Russia. Now that Donald Trump has won re-election, part of our country may now think concerns over autocracy have been allayed. Nothing could be further from truth.
Since the attack on our Capitol, political leaders, many of whom are lawyers, spread and amplified the ‘Big Lie.’ They did not engage in free speech because it was not valid political dissent against some government policy. Rather, they outright attacked the foundation of our constitutional government without bases.
Attorney Politicians Aid & Abet
Attorney politicians like Ted Cruz and Matt Gaetz, with no evidence and contrary to Republicans who spoke against the ‘Big Lie,’ continued to insist the 2020 election was “stolen” and Joe Biden was not a legitimate President. If this argument could not be made in court, it should not have been made in public. It should not have been normalized.
Then, we have attorney celebrities like former Judge Jeanine Pirro who, it has been discovered, aired “news” related to and promoting the ‘Big Lie’ that was false. Despite a staggering $1.6 billion settlement between Fox News and Dominion Voting Systems, measuring the gravity of the lie, the lie persisted and led to further attacks on our constitutional government by the people sworn to protect it – attorneys. The lack of a centralized, unified condemnation of the ‘Big Lie’ emboldened people who fed these lies to the American public. These bad faith actors continue to do the country further harm including through attacks on the rule of law.
Attacks on Legal Process
Recently, in the shadow of former President Trump’s state court criminal conviction for fraud, Senator Tom Cotton, also an attorney, attacked the jury verdict with unfounded statements like “it was rigged from the very beginning.” “[The judge] at every turn ruled in favor of the prosecution,” and “the reason why you have this weaponization of the legal system is because Joe Biden can’t defend his weak, failed record.” Tom Cotton did not go to the preliminary motion hearings, the trial, or posttrial hearings. Cotton did not review and analyze the many state law legal issues or factual questions raised, like the judge or jury did. Tom Cotton did not listen to the evidence or evaluate the credibility of the witnesses. A jury did, and that jury unanimously found the former President guilty on thirty-four criminal felony counts. While Cotton may not agree with the law, attacking the process is devastating to democracy, putting into question the fairness of trials for all Americans.
Besides providing cover for a convicted felon, attacks like these are additionally harmful in other ways. They degrade the rule of law much like the ‘Big Lie’ does by implying to the world, although unfounded, that one “can’t get a fair trial” in the United States, especially if a former President with unpopular political views can’t. Notably, the New York trial and conviction was focused on violations of state criminal law. It was devoid of discussion about political views, ideas, and dissent. It was all about banking fraud. Cotton’s comments, by comparison, are chock full of politically charged mischaracterizations going beyond normal political dissent. His words breed distrust in a judiciary for no good reason, a judiciary that Americans – individuals and businesses – turn to every day for justice.
Attorneys take an oath when they are admitted to the bar, with some variation, to “support [protect, uphold, or defend] the law, the Constitution of the United States and the constitution” of their state in which they are being admitted. And yet, too many attorneys, concerned with gaining or holding onto status politically or socially, have defied the oath. They baselessly claim an election was stolen. They attack as biased the justice system charged with bringing criminals to justice with no basis or evidence. These attorneys stand on the verge of allowing the pardoning of many individuals found guilty of attacking our nation’s capital, not because they were fed the ‘Big Lie,’ but because it was somehow true and justifies their release. These individuals (the ones that believe the lie as opposed to the criminals who all along tried to do our country harm) will continue to believe the ‘Big Lie’ as will other Americans who support them.
Bar associations, especially state bar associations and their attorneys, should take heed and uniformly speak out against what is occurring and discipline attorneys where necessary who have or continue to promote the ‘Big Lie’ and other anti-democratic falsehoods that are putting us on the path to authoritarianism. Frankly, just because an attorney politician claims to engage in speech related to their job as a politician does not mean they have the character and fitness to be an attorney when that speech attacks the rule of law.
ABA Finally Speaks Up
This past August/September, American Bar Association (ABA) President Mary Smith spoke out that “Lawyers Must Protect Democracy Now,” citing a “disappearing trust” in our democratic institutions. Properly, President Smith noted, “it is our oath to [actively] uphold justice and the Constitution,” but “many lawyers are not fully engaging with their ethical obligations . . . diminishing the profession’s role as keepers of democracy and the rule of law.” The ABA formed a task force to help people understand the electoral process. While sorely needed, it does not do enough to combat the avalanche of lies propagated by licensed attorneys, lies buoyed by their social status as both attorneys and elected officials. The national bar of attorneys needs to do more.
Sadly, our democracy would be in peril no matter who had won the election, because of the persistence, unethical misconduct of attorneys promoting the ‘Big Lie’ and denying the legitimacy of state and federal criminal prosecutions without evidence. Without attorneys as a profession speaking out in a unified, herculean voice against these baseless attacks on the rule of law, the pernicious decay of democracy will speed up until its sudden collapse. Perfectly reasonable laws will be ignored or misapplied and new unreasonable ones put in their place much like we see in autocracies.
State bar associations and other respected legal associations and institutions need to act right now. Well-known and respected attorneys, jurists, and leaders must speak out in a unified public way in the media. Indeed, this is needed now more than ever because the person who has pushed this agenda, Donald Trump, has regained the seat of power and there may be little to no guardrails to stop him from devouring what is left of our rule of law and democratic institutions. The foundation of our constitutional government needs protecting. We attorneys owe it to the American people to, “support [protect, uphold, or defend] the Constitution of the United States,” as we promised.
Jim Saranteas is a practicing attorney of 25 years with experience at the trial and appellate levels in civil litigation. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. Saranteas assists Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.
In the past year, economic justice-focusedstate attorneys general (AGs) have continued a trend of increasing their involvement in enforcing and protecting workers’ rights. State AGs have brought lawsuits combatting wage theft and worker misclassification in a range of industries, and sometimes criminally prosecuted egregious cases. They have pushed back against unfair employment practices that reduce worker power in the labor market, like non-compete and no-poach provisions, as well as a major merger with potential to adversely impact workers. State AGs have championed state-level pro-worker policies in the legislature and defended them in court, and they have weighed in on federal labor and employment policy.
Most notably, there are currently twelve state AG offices with dedicated labor or worker protection units (compared with only three in 2016): Arizona, California, Colorado, D.C., Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, New Jersey, and Pennsylvania. Several smaller state AG offices, like Delaware and Rhode Island, have lawyers focused on enforcing workers’ rights, even without a dedicated unit. State AGs are increasingly key players in protecting workers’ rights. At the same time, there is still considerable room for greater involvement: ideally, protecting workers will become a core function of virtually all state AG offices, alongside other areas like antitrust law and consumer protection.
Labor Day 2024 is an apt moment to examine the extensive activities of state AGs in relation to workers’ rights in the last year.
Fighting misclassification of workers as independent businesses rather than as employees
Nationwide, employer misclassification of workers as “independent contractors” rather than as employees has stark consequences: it deprives workers of essential protections, creates unfair competition for law-abiding employers, and harms the public coffers because tax and safety net programs do not receive needed funding. A number of state AG offices have played a role in fighting this, through litigation, task forces, policy input, and more.
D.C. AG’s office: The D.C. AG’s office provides an example of an office focused on fighting misclassification. The office obtained a $3 million settlement resolving its lawsuit against Arise Virtual Solutions, a large national corporation that provides customer services representatives to major household-name companies. As a condition of the settlement, Arise agreed to stop doing business in D.C. ProPublica covered the D.C. AG’s lawsuit and settlement, and previouslyreportedextensively about the corporation.
The office also took action in several cases in the construction industry, securing a $600,000 settlement with a construction company that underpaid and misclassified workers, and an agreement by the company not to do business in DC for five years, and a separate $350,000 settlement with additional measures to ensure future compliance in another case. In June, the office sued five companies in a case involving hundreds of construction workers. The lawsuit was filed against multiple players in relation to a development project: the general contractor, a subcontractor, and three labor brokers who helped procure workers. Newscoverage of the case detailed the value of seeking such “up-the-chain liability” in construction misclassification and wage theft cases.
The office also resolved smaller misclassification cases, including one involving a political consultant and another involving Fetch Package Inc., which partners with apartment buildings to outsource package receipt and delivery for residents. Finally, in August 2024, the D.C. AG announced the largest recovery in a workers’ rights enforcement action in District history: a $3.75 million settlement with Power Design, a major construction firm. The settlement includes $1.7 million in restitution to over 1,200 workers, as well as penalties and fees to the District, and robust injunctive measures to prevent future violations.
The Illinois AGreached a $718,000 settlement with a construction company that misclassified over 480 of its workers as independent contractors instead of as employees, and also paid a fixed daily rate no matter how many hours they worked, thereby depriving workers of required overtime pay.
New Jersey AG’s Office collaborates with state labor department to fight misclassification: The New Jersey AG’s office collaborated with the state labor department on major initiatives related to misclassification of workers, including a lawsuitagainst the nationwide trucking company STG Logistics, Inc., and STG Drayage, LLC (according to its website, the largest drayage provider in the United States). The case is the first to use new authority in New Jersey that allows the AG to sue in court on behalf of the Labor Commissioner. The AG and the Labor Department also jointly entered into a $455K settlement agreement with a luxury car transporter based on alleged misclassification of workers as independent contractors, unlawful deductions from pay, and recordkeeping violations.
Minnesota AG Task Force on misclassification leads to legislation: The Minnesota AG’s office createda statewide task force to study and make recommendations regarding combatting employer misclassification fraud. The AG’s task force developed a policy proposal that turned into a bill that was signed into law this year as Article 10 of a multi-issue bill (pp. 175-209). Among other measures, the law facilitates coordinated multi-agency enforcement, increases penalties for repeat violators, creates a stronger test for workers in the construction and improvement services industries, and creates a private right of action for victims of employer misclassification.
Fighting misclassification in the gig economy: After a multi-week bench trial against Uber and Lyft for misclassifying drivers, the Massachusetts AG office reached a settlement on the eve of closing arguments. News coverage explains that the AG’s decision to settle before a likely favorable verdict aimed to avoid a ballot initiative that would have undermined the state’s victory and cemented workers’ status as independent contractors in the future. The AG’s settlementrequires Uber and Lyft to drop the ballot initiative, pay $175 million in settlement funds, and adopt pay rates of $32.50/hour. The resolution also includes significant additional relief for drivers: paid sick leave, occupational insurance, transparency about trips and pay, deactivation procedures, and more. Shortly after the settlement, the AG expressed support for a union-supported ballot initiative that would allow drivers to collectively bargain. The AG also authored an op-ed about the decision to settle the case.
The Pennsylvania AG’s office filed an amicus brief in Razak, et.al. v. Uber Technologies urging a federal court to use the correct interpretation of Pennsylvania’s laws when deciding the question in issue in the case–whether Uber Black drivers are employees or independent contractors.
Fighting wage theft
While some states have statutes defining the term “wage theft,” elsewhere, it is a colloquial term referring to situations in which workers are not paid all of the wages they are legally owed: too often, employees work uncompensated hours, do not receive overtime, their hours are shaved, unlawful deductions are taken, or tips are stolen. Many AG offices have taken measures to fight wage theft. Some examples, in alphabetical order:
The California AG’s office filed a lawsuit against a construction company for wage theft and other labor violations. The office also reached a $826,000settlement with a stoneware company that used an unlicensed, out-of-state labor broker. A joint investigation by the AG’s office, the Employment Development Department (which administers unemployment insurance), and the Labor Commissioner’s Office found that the company failed to report and pay payroll taxes, pay overtime, and provide itemized wage statements to workers as a result of their association with the labor broker. The settlement includes back taxes, back wages for overtime, a civil monetary penalty, and funds for a restitution administrator.
The Illinois AG’s office, along with the U.S. Department of Labor, obtained a $3 million settlement in a case involving a meat processing company that allegedly failed to pay overtime, paying by check for the first 40 hours of work and cash at straight time rates off the books for hours past forty. The AG also settled a case for $335,000 involving truck drivers who haul road construction materials to and from construction sites; the workers were not paid for all time spent driving and also had prevailing wage violations.
The Massachusetts Attorney General is the primary enforcer of wage and hour laws in the commonwealth, and has a record of considerable activity fighting wage theft. A number of these cases also included paid sick leave or other violations. The office reached a $6.8 million settlement, including restitution and penalties, in a wage-theft case involving more than two thousand workers at the MGM Springfield Casino Hotel. The office also used the False Claims Act to recover nearly $1 million from a construction company, based on a subcontractor’s failure to pay the prevailing wage. The office also issued citations against a garment manufacturer ($665,000), a temp agency ($1.3 million), a concierge staffing agency that provides concierges for luxury buildings ($2.4 million), Boston Market ($104,000), and an Amazon warehouse subcontractor. Those cases are ongoing.
The New York AG’s office reachedsettlements with Uber and Lyft, in a case involving tax and fee deductions from driver pay that should have been paid by passengers, not drivers. The settlement includes $328 million in total, most of which will be distributed to drivers; it also requires the companies to provide paid sick leave to drivers, and to pay drivers outside of New York City at a minimum rate of $26.00 per hour. (New York City already regulates pay rates inside the City). Other cases involved $10,000 in wage theft by a dance company, as well as a $230,000 joint settlement, along with the New York City Comptroller’s office, involving a New York City building that failed to pay service workers prevailing wages, despite receiving a tax benefit that required them to do so.
The Wage Theft Unit of the Minnesota AG’s office has been very active since it was established in 2019. The office brought its biggest-yet wage theft case, filing a lawsuit against a dairy farms that allegedly owed workers $3 million and also deducted money from wages for uninhabitable living quarters. Two months after filing suit, the AG’s office obtained a stipulated temporary injunction requiring proper payment of workers and improvement of housing conditions while the lawsuit is pending. The office also settled cases involving unauthorized paycheck deductions by 3M (nearly $1 million), and unlawful time-rounding practices by a medical device manufacturing company that consistently resulted in hours worked being rounded down to workers’ detriment ($250,000).
Child labor
Amid a sharp increase in child labor violations nationally, several state AG offices have taken action to protect young workers. The Massachusetts AG recovered $1 million from Dunkin franchisees, and cited other restaurants for child labor infractions. The Minnesota AG’s office settled a child labor lawsuit case they handled on behalf of the Minnesota Department of Labor and Industry. The case involved teenagers performing hazardous work at a meat processing facility.
Protecting immigrant workers
Some state AG offices have taken action specifically to reach or protect immigrant workers, given their heightened vulnerability to workplace exploitation. The Washington AG’s office prevailed in the state Supreme Court in a case involving immigrant detainees who worked for the private prison operator Geo Group and were paid $1 per day, in violation of the state’s minimum wage law. The Court ruled that these workers were entitled to minimum wage. The D.C. AG permanently shut down a recruitment firm that exploited foreign exchange teachers, securing penalties and restitution. Recognizing that workers without employment authorization are more vulnerable still, the Massachusetts AG’s office announced a $750,000 grant program to fund nonprofit legal services and community partners to help provide legal services and help people apply for work authorization. The Illinois AG proposed legislation to strengthen protections prohibiting employer retaliation against immigrant workers; it was passed by the state legislature and currently awaits the governor’s signature.
In addition, several multistate coalitions of state AGs took action to support immigrant workers, including submitting a comment on a U.S. Labor Department proposal for H-2A temporary agricultural workers, and a letter calling on the Department of Homeland Security (DHS) to expedite and expand access to work permits for newly arrived immigrants. Most recently, a multistate coalition of state AGs, localities, and local prosecutors successfully advocated to DHS for an extension (from two years to four years) of deferred action for workers in labor disputes.
A coalition of state AGs also filed an amicus brief in Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. ___ (2024), urging the Supreme Court to hold that transportation workers in non-transportation industries are covered by the transportation-worker exemption to the Federal Arbitration Act and therefore are able to file lawsuits in court rather than being forced into arbitration. This argument ultimately prevailed.
Supporting state labor departments in their investigations and representing the state
A central aspect of state AGs’ work involves representing the state and state agencies in court, which sometimes involves labor issues.
Some state AGs file lawsuits on behalf of the state in general or state labor departments. Connecticut’s AG, for example, filed a $6 million lawsuit against the operator of state rest stops for allegedly not paying workers a higher wage rate that was required as a condition of a state contract. Wisconsin’s AG sued a garment business for unpaid wages, upon the request of the state Department of Workforce Development. The Minnesota AG and Minnesota’s Department of Labor and Industries jointly sued a major construction contractor alleging widespread wage theft ($2.4M) on 19 projects. North Carolina’s AG filed a lawsuit against a paper mill for breach of a grant agreement with the state: the agreement provided the mill with $12 million in economic development incentives in exchange for a commitment to maintain operations, and at least 800 jobs through a set date, but the mill closed and terminated all employees before then.
State AGs’ representation role can also safeguard state labor agency enforcement. Minnesota’s AG won a consent judgment in a case where a construction contractor obstructed a state labor department investigation; among other measures, settlement terms required the employer to personally tell all workers, with an AG representative present, that they are free to speak with the labor department.
State AGs have defended pro-worker state laws that are challenged by business opponents. For example, several AGs are defending state workplace conscience laws. Often described as laws banning employer captive audience meetings, the laws have much broader scope and prohibit employers from retaliating against workers for not attending employer-sponsored meetings in which the primary purpose is to communicate the employer's opinion concerning religious or political matters. New York’s AG has defended the state’s Farm Laborers Fair Labor Practices Act, which gives farmworkers the right to organize.
California’s AG repeatedly and successfully fought off challenges to AB5, a state law adopting the protective “ABC test” for determining employee status. The 9th Circuit issued an en banc decision upholding AB5 as not violating equal protection law.
Addressing labor market inequities
Various aspects of labor market inequities are detrimental to workers. Corporate concentration and certain mergers can depress wages and harm workers. Sometimes employers expressly collude regarding worker pay, and too many enter into no-poach agreements, agreeing not to hire each other’s employees. Worker mobility and working conditions are harmed by coercive contract terms: non-competes and stay-or-pay contracts (like training repayment agreement provisions, or TRAPs) prevent workers from being able to seek a new job. State AGs have begun to use their labor, consumer, and antitrust authority to address these types of workplace abuses.
New York’s AGrecovered $4.5 million from a title insurance company that used no-poach agreements that limited their employees’ mobility. A multi-state group of AGs submitted an amicus brief in a no-poach case involving tax preparer Jackson Hewitt, and 21 state AGs and the U.S. Department of Justice sought reinstatement of a lawsuit over no-poach agreements between Saks Fifth Avenue and high-end luxury designers. A multi-state group of AGs and the Federal Trade Commission, as well as the Colorado AG separately, sued to block a massive supermarket chain merger between Kroger and Albertsons for a host of reasons, including the impact on workers. The FTC-multistate lawsuit notes that the merger “may substantially increase Kroger’s and Albertsons’s leverage in negotiating with workers, reducing wages, benefits, opportunities, and the quality of workplace conditions and protections.”
The Illinois AG office prevailed in an Illinois Supreme Court case about the applicability of the state’s antitrust laws to labor markets. The case emerged from an AG investigation of three temporary staffing agencies that allegedly used no-poach agreements.
A multistate coalition of seven AGs reached a settlement to end the use of non-competes for hourly employees at the oil change and auto services company Valvoline. And enforcing a new state law, Minnesota’s AG reached a settlement with a commercial printer to release their workers from non-competes, and to notify workers of this.
California’s AG filed a stipulated judgment with a home care company that engaged in unfair competition by including in clients’ contracts no-hire and non-soliticitation provisions that placed unlawful constraints on home care workers’ mobility. The contracts also included a $12,500 liquidated damages charge if a client used, hired, or solicited a former caregiver from the company up to a year after termination of services. The stipulated judgment requires the company to pay $500,000 in civil penalties and imposes injunctive terms to “protect workers, safeguard consumers, and preserve competition in the market.”
Pennsylvania’s AG used its consumer protection authority to reach an agreement with PetSmart, requiring greater transparency and disclosures in relation to TRAPs.
Criminal prosecutions
State AG criminal authority varies: in some states, like Delaware and Rhode Island, AGs are the sole criminal enforcers. In other states, like Connecticut, the AG has no criminal authority. Most states fall somewhere in between: State AGs have authority to bring charges involving certain crimes for example, or in cases where a district attorney is unable to handle the case or requests the AG’s assistance.
Several AGs have brought criminal cases against employers for crimes affecting workers. Most notably, the Massachusetts AG office obtained the state’s first labor trafficking conviction after a jury trial in a case involving a defendant who forced immigrant women to clean businesses. The defendant was sentenced to 5 years in prison. The Michigan and Hawai’i AGs also brought labor trafficking charges involving a domestic worker and a worker on a farm, respectively.
California’s AG secured convictions in cases alleging wage theft, tax evasion and more, including in relation to a group of restaurants in the Bay Area and another group of restaurants in Los Angeles. The Michigan AG’s office charged an insurance agency owner with embezzling from employees.
Education and outreach
State AGs have high visibility, and their offices often use this position to educate the public on important workers’ rights issues. The Pennsylvania AG’s office, for example, hosted a labor trafficking symposium in conjunction with Labor Day 2023, and is planning its second Labor Day symposium, focused on home health care workers, for 2024. DC’s Attorney General did social media outreach about a minimum wage increase and about a new pay transparency law. After Arizona’s AG created a new dedicated worker protection unit, the new unit’s leader authored an article in Arizona Attorney Magazine (a monthly publication of the Arizona State Bar) about plans for the newly created unit.
Not all the state AG news is good for workers
In contrast to the positive developments described above, there are state AGs who have taken anti-worker actions in the past year. For example, Texas’ AG filed a lawsuit challenging a federal labor department rule that would greatly expand the number of workers entitled to overtime pay; fourteen state AGs filed an amicus brief in support of the Texas lawsuit. And many state AGs simply do not pursue workplace justice among their ongoing activities.
Looking ahead
Social justice-oriented state AGs will likely continue to expand their involvement in worker issues in the coming year. The presidential election looms large, of course, and the federal landscape will be vastly different depending on the results in November. In the event of a second Trump administration, state AGs that care about workers will likely devote considerable effort to fighting rollbacks of worker protections, while also filling the enforcement gap, as federal labor agencies will likely pull back from aggressive action in relation to workers’ rights. In a potential Harris administration, state AGs focused on workers’ rights will likely continue to aggressively enforce state worker protection laws, many of which are stronger than federal statutes.
At the same time, ten states are electing their top legal officer this year, and the outcomes of those elections could determine whether certain states continue down this path of increased worker protection and whether more state AGs take up this work. State AGs will continue to use a range of tools—labor law, antitrust, consumer law, criminal law, false claims acts—to fight employer abuses. And as the trend of state AG offices establishing dedicated labor units continues and solidifies, state AGs may perhaps collaborate more extensively in relation to violations by national or regional employers.
In any future scenario, one thing seems clear: a set of justice-focused state AGs will play a meaningful role in standing up for workers in the year ahead.
