Why Was Ketanji Brown Jackson Made to Stand Alone for the Rights of Starbucks Workers? (2024)

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The Supreme Court handed down an 8–1 decision on Thursday that will help employers quash union-organizing campaigns. Given the storm of other cases dropping from the court this month, it’s important not to overlook the significance of this latest anti-union blow.

When workers try to form a union, it’s common for their employer to retaliate against or fire them in order to stop the union effort in its tracks. In Starbucks v. McKinney, the court made it harder for the government to quickly force an employer to rehire or stop retaliating against those workers. The decision, written by Justice Clarence Thomas over a partial concurrence and partial dissent by Justice Ketanji Brown Jackson, will impede the government’s ability to swiftly address the most severe cases of employer lawbreaking in union campaigns. It underscores the need for stronger labor laws and fully funded enforcement agencies.

For Supreme Court watchers, the surprising part of today’s ruling is that Justices Elena Kagan and Sonia Sotomayor joined Thomas’ majority decision. Before exploring that development, though, let’s consider what was at stake.

The case involves seven union supporters terminated by a Starbucks store in Memphis, Tennessee. Inspired by the Starbucks workers in Buffalo, New York, who formed the first union at the company in late 2021, employees in Memphis began organizing a union in early 2022. Starbucks responded by disciplining a leader of the organizing effort and ramping up managerial oversight of the store. Then, in February, the chain fired seven union activists, including five of the six members of the store’s organizing committee. The firings had the intended effect of spreading fear and frustrating the organizing effort in Memphis and other cities. The firings were part of a nationwide anti-union campaign by the corporation: Starbucks has committed more than 400 violations of labor law, according to federal authorities, including firing at least 59 union leaders and supporters.

Employers frequently fire or otherwise retaliate against workers during union campaigns; they’re charged with violating federal law in more than 40 percent of union election campaigns. These violations, which are called unfair labor practices, often have a stark multiplier effect: Reprisals against just one or two people send a strong message to co-workers, chilling them from exercising their rights and often nipping a campaign in the bud.

In a tiny group of cases, the National Labor Relations Board, the federal agency that enforces employees’ right to form unions, determines that a particularly egregious and impactful illegal act must be reversed immediately, before a broader overall case is resolved, in order to protect employees. In those cases, the NLRB can seek a temporary court order, called a 10(j) injunction, requiring the employer to rehire workers or otherwise fix the unfair labor practice.

Despite the frequency of employer retaliation, it is very rare for the NLRB to seek this kind of injunction. As Jackson’s partial dissent pointed out, of the approximately 20,000 unfair labor practice charges filed last year, the board pursued temporary injunctions in just 14 cases.

When the NLRB sought this relief in the Memphis Starbucks case, a district court agreed, ordering reinstatement of the workers and preventing the premature suffocation of the union campaign. Since then, hundreds of Starbucks stores have unionized across the country.

For the NLRB to protect workers’ rights, it must have the ability to seek such relief, even if the agency invokes it infrequently. If the board can’t stop severe violations until it’s too late, it would be merely a paper tiger. Although retaliation is illegal, employers often calculate that it’s worthwhile to break the law: The silencing effect of firing even one or two workers can crush a unionization effort.

Meanwhile, an employer’s potential consequences are minimal and won’t be imposed for months or years. The National Labor Relations Act contains zero monetary penalties. The available remedies include reinstatement, which can be long delayed and are sometimes no longer desired by former employees who have moved on; restitution, including back pay but minus any wages earned in the interim; and, most toothless of all in deterring violations, a notice posted by the employer promising to follow the law in the future.

The legal issue in the Starbucks case was about the test a trial court should apply in evaluating the board’s request for a temporary injunction. The NLRB and worker advocates supported a test taking into account the importance of these injunctions in protecting workers’ rights, as well as the fact that Congress assigned labor enforcement not to the courts but to the NLRB.

Instead, the court treated rare NLRB requests for temporary injunctions to reverse unfair labor practices the same as any generic case in which a private party seeks an injunction for any reason at all, making it much harder to get them. Thomas’ decision Thursday is characteristically contemptuous about the careful process the NLRB follows to determine when to seek those injunctions, calling it “an agency’s convenient litigating position” and the views of “in-house attorneys” rather than acknowledging that it is the result of a multistep procedure of consideration and approvals by experts and the NLRB itself.

Jackson, by contrast, rejected the all-or-nothing binary of the majority opinion. She argued for an approach that, while incorporating the traditional factors for granting injunctions, applies them in a way that acknowledges the context of this statutory structure and the NLRB’s expert function. She astutely noted that the majority’s opinion constitutes a power grab for the courts, writing, “I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process.”

Why didn’t Kagan and Sotomayor join Jackson’s more nuanced analysis? It’s hard to say for sure, but here are some hypotheses. Are they now choosing their battles with fellow justices, finding common cause when they can to preserve collegiality and their internal credibility? (The very small number of cases in which the NLRB seeks this relief each year might have made the damage seem somewhat limited.) Did they implicitly adopt a sympathy toward management that federal judges have often shown? Research indicates that this is especially true of judges who have worked as prosecutors or corporate lawyers. Is it possible that Kagan and Sotomayor were making a strategic move to try to get another justice’s vote in a different case? Finally, there’s a saying among lawyers that bad facts make bad law. The fired Starbucks workers allowed a TV crew into the store to interview them, a detail that seemed to unsettle the liberal justices at oral argument. Did their negative gut reaction to the facts have an outsize impact?

We don’t know. What we do know is that this decision will weaken the NLRB and harm workers.

In the end, the Starbucks ruling is unsurprising, since it involves two things the court’s far-right supermajority can’t stand: workers’ rights and a government agency that protects them. The majority’s pattern of ruling for corporate interests and disdain for administrative agencies made the outcome here—if not the acquiescence of two progressive justices—feel foreordained, but it’s terrible for workers nonetheless.

The United States is in a moment of worker activism unprecedented in recent history, at Starbucks, in Hollywood, and even in the previously seemingly impenetrable South, where the United Auto Workers resoundingly won a union election at a Chattanooga Volkswagen plant. But the challenges workers must face when they try to form a union are still too high, and Thursday’s decision creates one more excessive hurdle.