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Brian Lehrer: Brian Lehrer, on WNYC. We've already talked on this show about June 1st, today being the beginning of Pride Month, and being the beginning of the month when all those contentious New York City budget debates have to be resolved. It is also the month when the Supreme Court releases their decisions on cases that they've heard over the past session.

There are some deeply consequential cases on the docket this year, tackling many of the most divisive issues of our time, affirmative action, student loans, voting rights, LGBTQ and business owners' rights, and more. Today, came a big decision in the case that hasn't gotten as much attention generally, Glacier Northwest versus International Brotherhood of Teamsters. It's obviously a labor-oriented decision.

The court sided against the union and with the company, Glacier Northwest, which sought the right to sue the Teamsters. The company alleged that the consequences of a labor action entitled them to damages. With us now, for some analysis of the case and the possible ramifications for labor generally, is Elie Mystal, justice correspondent for The Nation. Elie's been good enough to say he'll come on with us a number of times this month, on the day that these upcoming decisions are handed down.

He's the author of Allow Me to Retort: A Black Guy's Guide to the Constitution, which he was on for last year, when that book came out. Elie, hey, thanks for coming back on WNYC.

Elie Mystal: Thanks for having me. Welcome to the worst month of my life every year, as I read these horrible opinions.

Brian Lehrer: I guess with the particular Supreme Court that we have these days, that's how you experience them. All right. What is Glacier Northwest, and why did they sue the Teamsters?

Elie Mystal: One of the reasons why this case hasn't gotten a lot of attention, compared to some others, is that we all know that this current Supreme Court is viciously anti-labor. Roberts Court is the most pro-business court in American history, or at least since before the New Deal. They consistently make anti-labor decisions, but this one is a doozy. What happened is that Glacier Northwest is a cement mixing company.

The Teamsters were in labor negotiations with the cement company, Glacier, and they walked out on the job, they struck. That's what labor does, when it doesn't get what it wants. There's a strike. The strike happened after the cement was poured into the trucks. Now, I am no constructionist, but I have an understanding that cement tends to dry. It's a time-barred situation.

Leveraging their power to the maximum, they struck after the cement had been poured, before it had been delivered to the various places that they were supposed to deliver it to. They drove the trucks back to the lot. They kept the trucks running so that if Glacier could find scabs to decant the cement, they had that opportunity. Obviously, Glacier could not find enough temporary workers, some of the cement hardened in the trucks, and then Glacier sued the Teamsters for destruction of property, which is what happened during the course of their strike.

To me, it's a ridiculous lawsuit, to begin with, but of course, this is the most pro-business court in American history, and the court ruled 81 that the Glacier, the cement company, was allowed to sue the Teamsters, and is allowed to pursue damages against the Teamsters. What this means, Brian, is that it takes a huge whack at the right, to strike in this country. If your employer can sue you for any time property gets damaged, or spoils, in this case, every time you walk out on the job, it severely limits the ability of workers to strike if they work in any industry where spoilage is a factor.

Brian Lehrer: That's one kind of damage. By implications, would this ruling allow companies to sue striking unions for any financial losses that they suffer? I mean, almost by definition, if you have a strike, you're going to cause financial pain on the part of the company. That's how the union is putting pressure on them. Is that now enabled to be the basis of a lawsuit, because of this?

Elie Mystal: It's kind of the point of a strike, isn't it Brian? To cause economic harm to your employer. Could employers sue for any economic damages? That's where we get into the meta, the between-the-lines of this case. In addition to being shockingly anti-worker, what the Supreme Court has really done is taken a big shot at the National Labor Relations Act, and therefore, the National Labor Relations Board.

Basically, we have experts that are supposed to determine whether or not a strike caused unnecessary economic harm. Whether, basically, the strikers went out of their way to cause economic harm. We can understand why there are limits on that. If I strike, if I walk out on the nation, I can't throw the printer out the window on my way out the door. That's not part of my right to strike. Those experts are at the National Labor Relations Board.

The way that the law worked until this morning was that the NLRB got first crack at deciding whether or not an action, a worker action, was within the bounds of their right to strike, within the bounds of the National Labor Relations Act, or not. What the Court has done today, is interposed itself between the NLRB and the labor unions, and ruled on its own authority that the worker's actions were potentially violative of the NLRA, without letting the NLRB, the National Labor Relations Board, act first.

That significantly weakens the power of the NLRB, and of workers, because now, arguably, if you sue a striking labor union, it goes directly to state court, as opposed to directly to the NLRB, which is a big loss for labor rights and for union organizers in this country.

Brian Lehrer: Where's the line? Could the TV production companies now sue the Writers Guild because they're losing money on these shows that they're not making?

Elie Mystal: Right. That's the whole point. I don't know where the line is anymore. The line is supposed to be determined by the NLRB, right? It's not supposed to be determined by nine unelected judges. It's supposed to be determined by a board of experts, who spend all their time thinking about these lines and where to draw them. Not by the Supreme Court, and certainly not by random state courts, which is what this decision means. Could TV producers sue striking Writers Guild employees? I don't know.

Before this morning, absolutely not. After this morning-- That's one of the things that I always talk about, with conservative rulings, is that they're designed to cause confusion in the law, because they're designed to make people afraid of accessing their rights. That's actually the point, so that you don't know where the danger is coming, where the lawsuit is coming. We see this in the abortion situation, where even people who still have, should have some access to reproductive health care, don't know if they can get access.

Doctors don't know. That confusion and fear is actually part of the conservative crusade against rights in this country.

Brian Lehrer: As it happens, our first guest tomorrow is going to be a leader of the Writers Guild, as they mark the one-month anniversary of the beginning of the strike. This is not the topic I thought we'd be talking with that person about, but I guess now it's going to be one of them. You're calling this a conservative ruling, but you also said it's eight to one. I see that only Ketanji Brown Jackson dissented.

It's not the usual right-left split that we've come to expect from the Supreme Court. What's your impression of why more of the liberal justices sided with Glacier Northwest?

Elie Mystal: First of all, it just makes me sad. I wish all three of the liberals had stuck together on this one. My theory for why they didn't is called strategic voting, and we see this happen from time to time on the Supreme Court. There were two opinions here, right? There was what ended up being the majority opinion, written by Amy Coney Barrett, and a concurring in the judgment opinion, written by Clarence Thomas, Neil Gorsuch, and Samuel Alito.

Those three yahoos, they would have just gone after the NLRB directly. They would have overturned the principle that the NLRB gets first crack. Whereas what Barrett did was say, "The NLRB usually gets first crack, but not in this case." It's a narrower ruling than what Thomas and them would have done, and I believe-- I don't know this. They don't take my calls. [laughs] I believe Sotomayor and Kagan sided with Barrett's opinion to make sure that Thomas's opinion wasn't the majority opinion, and wasn't the controlling opinion on this case.

I believe it was an example of strategic voting, and then Ketanji Brown Jackson, her vote, not needed to ensure the Barrett majority. She was then free to write a stinging dissent, Brian. Her dissent is longer than the majority opinion and the concurrence, by the way. She was on fire with her argument. She was able to do that without risking Thomas's opinion being controlling, in part because of the strategic voting. That's my theory, but the other thing that's worth saying is that the--

Brian Lehrer: We have 10 seconds, Elie. 10 seconds, literally.

Elie Mystal: Okay. The other possibility here is that the fact that this was quick-drying cement really did influence Sotomayor and Kagan in a way that I would disagree with.

Brian Lehrer: Elie Mystal, justice correspondent for The Nation. We'll see when that next major Supreme Court decision comes down this month, and probably talk to you again then. Elie, thanks a lot.

Elie Mystal: Thanks for having me. Promise I will be back next month, later this month, too. [laughs]

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