During our recent blogcast with labor law scholars Charlotte Garden and Anne Marie Lofaso, we briefly discussed “textualism” in our analysis of the Supreme Court’s recent decision in Glacier Northwest v. Teamsters. This post expands on that brief discussion and seeks to explain some of the exasperation you may have heard.
Textualism is a methodology for interpreting statutes championed by the late Justice Antonin Scalia. It is the prevailing statutory interpretation tool among several (and maybe a majority of) members of the Roberts Court. For example, Justice Neil Gorsuch used textualism in Bostock v. Clayton County to lead six of his colleagues, including Chief Justice John Roberts, to hold that Title VII of the Civil Rights Act prohibits employment discrimination against LGBTQ+ workers. Gorsuch parsed the statutory terms “discriminate,” “because of” and “sex” using the textualists’ favorite tool --- a dictionary --- and concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” A purportedly “conservative” justice reaching a progressive result has become a potent reference point for those claiming that textualism is ideologically neutral. In fact, this is supposed to be its central selling point.
That argument might have more power if textualism were applied consistently. It isn’t. Justice Elena Kagan criticized textualists’ frustrating inconsistency when, after declaring in 2015 that “we’re all textualists now,” she was forced to recant in 2022 with an acknowledgement that “[t]he current Court is textualist only when being so suits it.” Too often, Supreme Court justices either use textualism as a thinly veiled strategy to achieve a desired result or simply ignore it because an honest application of textualism might erect a barrier to the justices’ preferred result. For example, Justice Amy Coney Barrett, a self-professed textualist, dissented in Bostock, perhaps because she could not stomach an employment discrimination law protecting LGBTQ+ workers. Her decision for the majority Glacier Northwest took a different path: she ignored textualism to reach a pro-business result.
Textualism begins from the premise that the text of any statute, as enacted by a legislature and signed by the executive, is the only articulation of law recognized by the Constitution. The legislature’s intent when enacting a statute is not law. The legislature’s purpose for enacting a statute is not law. Materials other than the legislative text, like the proceeds of legislative hearings, committee reports, and statements by bill’s sponsors, are not law. Only the ordinary meaning of the words and phrases used in the statute are law. Since judges’ role is to give effect to the law as enacted by the legislature, judges’ authority when deciding statutory cases is strictly limited to applying the ordinary meaning of the statute’s words and phrases. Anything else is judicial policymaking, which is not permitted in the statutory realm, or so textualists argue.
Justice Barrett’s opinion in Glacier Northwest purported to interpret the National Labor Relations Act (Act), the private-sector federal labor law. The issue in the case, in simplified terms, was whether strike-related activity by Teamsters concrete-truck drivers that allegedly harmed the employer’s property could be the subject of a state torts lawsuit. “Preemption” was the central question in the case. Again, simplifying for our purposes, the employer’s state-law lawsuit would be preempted by federal labor law if it actually or arguably addressed conduct protected or prohibited by the Act.
One would expect a textualist to begin a decision about strikes and the Act by quoting the most directly relevant language in the statute. The Act’s Section 13 states: “Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” It’s hard to imagine how Congress could have written a broader protection for the right to strike, especially understanding its context. Section 13 was part of a congressional strategy to end the judicial practice that was common in the decades leading up to the Act’s passage in 1935 of issuing injunctions or otherwise blocking or weakening strikes. Congress knew courts would endlessly search for ways to make themselves relevant during labor disputes, typically in response to employers’ demands. Section 13 directed courts to stay out of the way and leave any decision-making to the National Labor Relations Board (NLRB), the expert agency Congress created to administer and enforce the Act.
Even though Glacier Northwest directly implicates workers’ right to strike, Justice Barrett ignored Section 13. She did not cite or even mention it in her majority decision. That’s not what textualists are supposed to do. Yet, citing Section 13 would have made the result Justice Barrett wanted to reach impossible. Instead, she broadly asserted that workers’ right to strike is not absolute and cited to selected NLRB decisions. While it is true that the right to strike is limited, Section 13 states plainly that the only source of any limitations on the right to strike are those “specifically provided for herein.” In other words, the only valid limitations are those Congress has written into the Act. For example, the Taft-Hartley Act amended the law to prohibit secondary boycotts --- that is, a strike against a customer or a supplier, for example, that is not a party to a labor dispute. Absent this kind of express statutory limitation, Section 13 clearly declares that the right to strike prevails.
This textualist reading of Section 13 simplifies the preemption question. If the Act is the only source of limitation on workers’ right to strike, then any question that arises in state court relevant to the right to strike is preempted. By definition, any limitation on strikes must be actually or arguably either protected or prohibited by the Act because it must be “specifically provided for herein.” The Board, not state courts, should adjudicate the issues because all the issues arise under the Act.
An honest textualist might argue that the inquiry does not end there. They would argue that “strike” does not encompass all behaviors in which workers engage during a labor dispute. As is their way, they would turn to a dictionary. The Oxford English Dictionary defines “strike” in the labor context as “[a] concerted cessation of work on the part of a body of workers, for the purpose of obtaining some concession from the employer or employers.” The OED offers citations for this usage dating back to the early 19th Century, so it is reasonable to assume this definition or something close to it was the ordinary meaning understood by the members of Congress who crafted Section 13 and the Act.
Plainly, this definition implies further limitations. Beating up a strikebreaker trying to cross a picket line is not “strike” activity because it is not a part of a concerted cessation of work. Applying the business end of a baseball bat to the employer’s equipment also is not a concerted cessation of work. So, a textualist would hold these behaviors are not protected by Section 13. Although not necessarily the product of textualist analysis, the pre-Glacier Northwest law of preemption largely tracks this definitional distinction. State criminal prosecutions or state civil torts claims based on these kinds of activities are not preempted by the Act.
Yet, Glacier Northwest’s Teamsters drivers did not engage in those behaviors. The employer’s state torts law claims were styled to suggest the drivers committed injurious acts against the employer’s property, but that is not really what happened. In brief, the Teamsters launched their strike soon after the employer put wet concrete into trucks for delivery by its drivers. The Teamsters drivers did not deliver the concrete. Instead, they returned their trucks to the employer’s facility. Wet concrete dries if not delivered in a timely way, so it might have been wasted. Dried concrete sitting inside a concrete-mixing truck for too long can damage the truck, so the employer needed to empty the trucks before any damage occurred. Some Teamsters helped unload the trucks. Others did not.
At bottom, what did the Teamsters do? They engaged in a strike. This strike fit very comfortably within the OED’s definition. They ceased work. That’s all. Any harm that might have resulted for the employer was entirely a consequence of the Teamsters concertedly ceasing their work. So, an honest textualist would have to say that the Teamsters drivers’ conduct was protected by Section 13, as well as Section 7’s broader protection of “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” As a result, an honest application of textualism necessarily should have led to the conclusion that any state torts lawsuit against the union and its members is preempted.
The NLRB’s general counsel plainly agreed. Her office filed an unfair labor practice complaint against Glacier Northwest, in part, on the grounds that its state lawsuits amounted to retaliation against the strikers for engaging in protected concerted activities.
This latest Supreme Court labor law decision helps to explain the exasperation that so many lawyers and legal scholars express over justices’ reliance on and claims about textualism. You heard some of it in our blogcast. Textualism is seriously flawed and, in truth, amounts to little more than the Supreme Court violating the separation of powers by stealing authority from Congress. That's the subject for a separate conversation. But if textualists are going to persist in touting their approach as a neutral methodology, then it must be applied honestly and consistently. It must strengthen worker power when the Court is interpreting a statute that Congress intended to balance power inequities in the workplace. Glacier Northwest provided all the textualist justices a golden opportunity to make that point, just as Justice Gorsuch did in Bostock. But then Justice Gorsuch joined Justice Barrett’s result in Glacier Northwest and both alleged textualists ignored the obvious textualist path. Instead, they chose the anti-union result.
