THE DAY AFTER the Supreme Court delivered a victory for Pacific Legal Foundation in Cedar Point Nursery v. Hassid, Elie Mystal, justice correspondent at The Nation, published a column under this blistering, eye-catching headline: “Yesterday’s Union-Busting Supreme Court Decision Was a Segregationist Throwback.”
Chief Justice John Roberts’ decision, Mystal wrote, used arguments “effectively repurposed from arguments segregationists used against civil rights activists.” We shouldn’t even be surprised by the decision, he scoffed, because “[t]he court’s conservatives have done everything they can think of to de-unionize America in service of mega-corporate interests.” By siding with Cedar Point Nursery, the Court “not only opened the door to continued union-busting” but also “reinvigorated long-discredited views of how property owners might use that property as an excuse to deny civil rights across the spectrum,” Mystal wrote. “It’s a game changer for how white owners will seek to deny rights.”
Now: If you were a reader of The Nation who had never heard of Cedar Point Nursery before, you would be forgiven for assuming, based on Mystal’s article, that the case had something to do with (1) union-busting, (2) segregation, (3) race, (4) mega-corporate interests, and (5) the denial of civil rights.
You’d probably be outraged. You’d probably walk away from the article thinking that the six conservative Justices who sided with Cedar Point Nursey are radically anti-union and pro-segregation. They must be, because that’s what the Cedar Point Nursery case is about—right?
Distinguishing fact from fiction
Here’s the real story of Cedar Point Nursery v. Hassid:
At 5:00 a.m. on a cold October morning in 2015, a group of United Farm Workers organizers marched into the property of Cedar Point Nursery, shouting through bullhorns and waving signs. Cedar Point’s workers—100 full-time and 400 seasonal—were about to start their day’s work harvesting strawberry plants. Instead, they stopped, nonplussed, as strangers yelled at them through bullhorns from only feet away. Some workers left, intimidated.
Cedar Point Nursery couldn’t make the organizers leave the property because, according to a 1975 California labor regulation, union organizers had the right to enter private agricultural businesses for up to three hours a day, 120 days per year, to encourage union membership.
The owner of Cedar Point Nursery wasn’t a “mega-corporation.” It was Mike Fahner, a third-generation farmer. Mike passed away in November 2021, less than six months after the Supreme Court decided his case. I was the lead attorney on the case and spent a lot of time with Mike. He was a blue-collar guy who made others feel comfortable immediately, spoke fondly of his employees, and took obvious pride in his work.
Mike called the union organizers’ actions “basically an ambush.”
“Where in this world can someone invade your house or your place of business with a bullhorn, disrupt everything you’re doing, walk out, and not face any repercussions?” he asked.
The Supreme Court agreed. Chief Justice Roberts’ decision held that by giving union organizers the right to invade and occupy Mike’s property for three hours a day, a third of the year, the state had violated the Takings Clause of the Constitution, which prevents government from taking private property for public use without just compensation. Chief Justice Roberts compared Mike’s case to the 1946 case of United States v. Causby, where the Court held that the military’s frequent low-altitude flights over the Causby family’s farm violated the Takings Clause.
“The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation,” Roberts wrote. “As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.”
That’s what the Cedar Point Nursery decision was about. But that’s not how Elie Mystal described it to his readers.
And he wasn’t the only one to mischaracterize the case.
Ian Millhiser, senior correspondent at Vox, said the case “could endanger basic government functions such as fire inspection and workplace safety.” A Washington Post column by Erin Mayo-Adam said that “the court’s conservative majority has dealt what could be a mortal blow to [unions’] ability to organize,” and that it could also “compromise anti-discrimination and fair housing laws.” Writing in The Atlantic, Eduardo Peñalver called it an “obscure case that could blow up American civil-rights and consumer-protection laws.”
These commentators aren’t simply getting it wrong. Most of them know better: Mystal graduated from Harvard Law School, Millhiser graduated from Duke Law School and clerked on the Sixth Circuit, Mayo-Adam is a political science professor, and Peñalver is a law professor.
So why are they driving a media narrative that is inaccurate, hyperbolic, and inflammatory?
Painting a picture of a partisan Court
The Cedar Point Nursery coverage is part of a troubling phenomenon: Increasingly, when commentators disagree with a Supreme Court argument or decision, they denounce it in the most sweeping, politicized, divisive language possible. A campaign finance case is described as an attempt to legalize bribery. A discrimination case becomes a mandate to “treat men and women as interchangeable or get sued into oblivion.” A religious liberty case is called an attack on public education. A takings case is reframed as a blow to civil rights.
And these commentators continually cast the Court itself as a radical, partisan institution: According to The Guardian, the Supreme Court “has become one of the most powerful partisan weapons in America.” New York Magazine calls the Court “an illegitimate institution not fit for its purpose.” Washington Post columnist E.J. Dionne says it’s “runaway” and “radical.” According to Slate, the Supreme Court has shown “that when the rubber hits the road, partisan politics is what matters.”
To journalists’ delight, politicians have helped spark and fuel this media narrative. In December, Senator Sheldon Whitehouse and several colleagues penned a public letter alleging that the Court “has been captured by partisan donor interests” and that its independence “has been compromised.” Senator Elizabeth Warren called it an “extremist” Court that has “threatened, or outright dismantled, fundamental rights in this country.”
It makes sense that legislators who believe in a hefty federal government would try to undermine public trust in the Court: As a gridlocked Congress delegates more and more lawmaking authority to the president and federal agencies, the judiciary is the only check against unconstitutional Executive Orders or agency rulemaking. When the Supreme Court blocks a regulation—as it did in January with President Biden’s OSHA vaccine mandate—supporters of the regulation would rather smear the Court’s action as politically motivated than accept as legitimate the limitations the Court puts on federal power.
And smear the Court they do: After the OSHA vaccine mandate decision, some senators and congressmen immediately took to Twitter to denounce it as “Republican Supreme Court Justices deliver[ing] for dark money interests” (Senator Sheldon Whitehouse); “the conservative Supreme Court […] forcing Americans into unsafe conditions” (Congresswoman Marie Newman); and “an irresponsible decision by unelected extremists” that “will endanger millions” (Congressman Chuy García).
The consequences
Language like this—from politicians and the press—has consequences: It distorts people’s impressions of the Court.
More than 60% of Americans now believe the Supreme Court is motivated by politics, according to a November 2021 Quinnipiac poll. Only 32% believe Justices are motivated by the law. A similar 2021 poll from Gallup indicates that confidence in the Court is declining across the political spectrum—among Democrats, Republicans, and independents.
The Court doesn’t need voters to approve of the job it’s doing. In fact, the judiciary is the only branch of government not dependent on retaining people’s affection—which makes it least vulnerable to capture by political tribalism, demagoguery, and mob rule.
But there’s now a serious disconnect between what the Supreme Court actually does and what the majority of Americans believe it does. Driven by willfully inaccurate media coverage and self-serving politicians, the public’s perception of Supreme Court business is often grounded in fiction, not fact.
We saw how that happens when we compared media coverage of the Cedar Point Nursery case with the truth of that case. Let’s look at a couple other recent examples.
A ‘nihilistic’ ruling
When the Court upheld two Arizona voting regulations last July, the decision from Justice Samuel Alito was panned as dangerous for democracy and equality.
“Justice Alito and the other conservative justices are leading the United States back to a time when racial discrimination in voting was easy, voting lawsuits hard, and political activity conducted behind a veil of secrecy,” Slate declared. The New Republic called the decision “fully unmoored from legal reasoning,” cynical, un-American, and nihilistic. “Bigots have finally accomplished their goal of gutting the Voting Rights Act,” Elie Mystal wrote at The Nation.
But the case against the Arizona voting regulations was weak: Both the Biden administration and ACLU had acknowledged that there wasn’t compelling evidence that the two rules—one requiring in-person voters to vote at their assigned precinct, one preventing mass collection of mail-in ballots by third parties—were discriminatory in practice. Each Arizona county had the option of setting up voting centers instead of precincts, and every Arizona voter had the option of voting by mail. As Alito’s decision noted, “Arizona law generally makes it very easy to vote.” And the percentage of people who accidentally cast an out-of-precinct ballot was small. “A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open,” Alito reasoned.
While media commentators made the decision sound like a callous rubber-stamping of discriminatory voting regulations, the facts of the case put the decision in an entirely different light.
A lawless power grab
When the Supreme Court overturned the CDC’s national eviction moratorium last August, it shouldn’t have come as a surprise to anyone: The Court had previously upheld the moratorium but had signaled that Congress would need to act in order to extend the moratorium past its scheduled July 31 sunset.
Congress and the White House failed to act. Yet they were quick to portray the Court’s decision as shocking and heartless.
The next day, Speaker Nancy Pelosi said, “Last night, the Supreme Court immorally ripped away that relief in a ruling that is arbitrary and cruel.” The White House said the decision meant “families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19.” Congressman Emanuel Cleaver said that the “far right Supreme Court’s decision to end the eviction moratorium has put millions of Americans at risk of eviction in the middle of a raging pandemic.”
This language was echoed almost word-for-word in media coverage. Jeff Stein, Washington Post economics reporter, described the decision on Twitter: “GOP-appointed Supreme Court striking down eviction moratorium puts millions of low-income renters at risk in the middle of delta variant.” Vox’s Millhiser said, “I see the Supreme Court did another evil.” In Salon, politics staff writer Chauncey DeVega wrote that “the Republican-dominated Supreme Court decided to literally throw thousands of Americans into the streets by ending the Biden administration’s moratorium on evictions during the coronavirus pandemic.” Jacobin called it a “lawless power grab by an increasingly out-of-control institution.”
Of course, the Court’s decision wasn’t a power grab by any reasonable definition. On the contrary: The Court was reminding Congress that only it, not the CDC, could authorize an extended eviction moratorium. Yet Members of Congress who bitterly criticized the ruling made no effort to propose or pass legislation extending the eviction ban they asserted was so necessary. “It is indisputable that the public has a strong interest in combating the spread of the Covid-19 Delta variant,” the Court’s per curiam decision read. “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
Although it was portrayed as an activist political decision, the Court’s decision on the eviction moratorium was about respecting separation of powers—not about the merits of the moratorium itself.
Justices respond
A recent PBS documentary about the politicization of the Court was pessimistic that the public would ever again trust the Court as a legitimate, independent institution.
“The biggest tragedy is that we are now hopelessly divided on the last thing that used to unite us, which is our judicial system,” pollster Frank Luntz says in the documentary. “Now there’s nothing that pulls us together. Nothing.”
But despite all the relentlessly polarizing stories about the Court, and the inaccurate attacks on decisions like Cedar Point Nursery v. Hassid, the Justices on the Supreme Court are doing their best to change people’s minds. “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks,” Justice Amy Coney Barrett told an audience in Kentucky. Justice Elena Kagan has assured people that the Court should be seen as “above the fray.” Justice Neil Gorsuch said it’s “rubbish” to treat Justices as “politicians with robes.”
And Justice Stephen Breyer published a new book last fall, The Authority of the Court and the Peril of Politics. In interviews, he repeatedly stressed the integrity of the Supreme Court as a non-partisan institution. “Political groups may favor a particular appointment,” he explained. “But once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”
If you look closely at Supreme Court cases and decisions, you’ll be inclined to trust the Justices’ word. When PLF attorneys prepare our arguments for the Court, we view all nine Supreme Court Justices as motivated by the law, not politics—no matter what the headlines say.
