• Trump nominee Amy Coney Barrett a threat to the Affordable Care Act, healthcare for millions of workers at risk
“On behalf of the International Longshore & Warehouse Union (ILWU), it is with great sadness and a heavy heart that I join the millions of people across the country as we mourn the death of U.S. Supreme Court Justice Ruth Bader Ginsburg. Part of our democracy has died today,” said ILWU International President Willie Adams in a statement released on September 19.
Justice Ginsburg passed away on September 18 after a long battle with pancreatic cancer at the age of 87.
Legal trailblazer
Ginsburg was the architect that defined the legal battle for women’s rights in the 1970s when she was a lawyer for the ACLU. In a series of legal cases, Ginsburg advanced the idea that the Equal Protection Clause of the Fourteenth Amendment covered discrimination based on sex.
Her legal strategy was to bring cases that could show how such discrimination harmed men because she believed judges would be more likely to find that to be problematic than those that focused solely on the impact to women. Ginsburg’s lawsuits also challenged the norms that defined women’s primary role as caregivers and men’s role as workers outside the home.
In the 1972 case, Charles E. Moritz v. Commissioner of Internal Revenue argued before the 10th Circuit, Ginsburg represented the plaintiff, Charles Moritz. Moritz brought suit after the IRS denied his deduction for the cost of a caregiver for his invalid mother. The law at the time specifically allowed such a deduction, but only for women and formerly married men.
In 1975, Ginsburg argued the case Weinberger v. Wiesenfeld before the U.S, Supreme Court. Ginsburg represented Stephen Wiesenfeld, a widower and the sole provider for his newborn son. Wiesenfeld sued after he was denied Social Security Survivor’s benefits that were made available to widows but not widowers.
In both Mortitz and Weinberger, the courts ruled that the Constitution prohibits discrimination on the basis of sex.
Defender of worker’s rights
Ginsburg was also strong supporter of the rights of workers. In her dissent in the 2018 case of Epic Systems Corp v. Lewis, Ginsburg articulated a fundamental principle of unionism—the strength of workers’ collective power. She wrote, “For workers striving to gain from their employer’s decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer.”.
Ginsburg joined the dissent in AFSCME v. Janus. In that case, the Court’s majority ruled that public employees do not have to pay fees to unions to cover the costs of collective bargaining. The dissent, written by Justice Elena Kagan, criticized the Court for being “black-robed rulers overriding citizens’ choices” by overturning “a decision entrenched in this Nation’s law—and its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”
Rush to replace
Immediately after Ginsburg’s death, Senate Majority leader Mitch McConnell vowed to confirm a new appointment to the Supreme Court before the November 3rd elections. This rush to fill the vacant seat stands in sharp contrast to the Republican position in 2016 when the GOP-controlled Senate refused to hold a confirmation hearing on Obama’s Supreme Court nominee, Merrick Garland, because the country was nine months away from an election.
Another Trump appointment would cement a 6-3 supermajority for extremist conservatives on the Supreme Court who are increasingly out-of-step with the majority of American voters. If the nomination goes through, Trump, who lost the popular vote by over 3 million votes, will have appointed one-third of the Court’s nine Justices. George W. Bush, who also lost the popular vote, appointed two Justices.
Healthcare for millions at risk
Trump’s nomination to fill Ginsburg’s seat, Judge Amy Coney Barrett, poses an immediate threat to the Affordable Care Act and the healthcare of millions of Americans. The Supreme Court will review the constitutionality of the Affordable Care Act (ACA) this November in the case California v. Texas. If the ACA is invalidated, Americans will lose protections for pre-existing conditions—including those who have been diagnosed with COVID-19—and tens of millions of workers who benefit from 1) financial assistance to obtain coverage, 2) the Medicare expansion provisions of the ACA and 3) those who are allowed to remain on their parent’s plan until the age of 26, are at risk of losing medical coverage in the middle of a pandemic.
Barret’s opposition to the ACA is not in doubt. In 2017, Judge Barrett wrote an article that was highly critical of the Supreme Court’s narrow 5-4 ruling to uphold the ACA. She wrote in support of the minority that voted to overturn the law and there is no reason to think that she will not vote to overturn the ACA if given the opportunity.
Barrett’s anti-worker record
The appointment Judge Barrett also poses a risk for workers’ rights. According to the Alliance for Justice, Barrett recently ruled in favor of limiting the enforcement of workers’ protections against age-discrimination by employers. And in Wallace v. GrubHub Holdings, Inc., Barrett ruled against drivers claiming that GrubHub violated federal labor law by failing to pay them overtime wages. The ruling also blocked many workers from suing in court to protect their rights by upholding technology companies’ use of mandatory arbitration clauses that force worker disputes to be decided by private arbitrators handpicked by the companies instead of an impartial court of law.
Ginsburg’s final request
President Adams’ concluded his statement by calling on the Senate to respect Ginsburg’s last wishes.
Adams wrote, “The ILWU joins the voices of millions of Americans in supporting Justice Ginsburg’s final request when she wrote, ‘My most fervent wish is that I will not be replaced until a new president is installed’” We are committed to seeing this request respected by all members of the United States Senate. In her name, we, the ILWU, will continue the fight for justice for all. Rest in power, Ruth Bader Ginsburg.”