Excerpt: Implications of Cedar Point Nursery

PUBLISHED

Nikolas Bowie (@nikobowie) is Assistant Professor of Law at Harvard Law School.

Veena Dubal (@veenadubal) is Associate Professor of Law at U.C. Hastings College of the Law, San Francisco.

Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

Corinne Blalock (@corinneblalock) is the Executive Director of the Law & Political Economy Project.

PUBLISHED

Nikolas Bowie (@nikobowie) is Assistant Professor of Law at Harvard Law School.

Veena Dubal (@veenadubal) is Associate Professor of Law at U.C. Hastings College of the Law, San Francisco.

Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

Corinne Blalock (@corinneblalock) is the Executive Director of the Law & Political Economy Project.

On October 22, 2021, the LPE Project and APPEAL sponsored a panel discussion about the U.S. Supreme Court’s recent decision in Cedar Point Nursery v. Hassid. In the following excerpts, which have been lightly edited for length and clarity, the panelists discuss the potential implications of the Court’s decision for workplace democracy, as well as legal and non-legal strategies for overcoming this concerning turn in Takings Clause jurisprudence. A video of the complete discussion is available here.


Panelist Introductory Remarks

Nikolas Bowie

[Cedar Point] presents a really dramatic threat to democracy in the workplace. The reason why is not because of the access rule in and of itself, but because of the Court’s definition of this right to exclude as being so fundamental that when the government interferes with it, it requires just compensation.

The reason that’s important is because the most significant source of workplace hierarchy is an employer’s power to fire or an employer’s power to exclude workers from their property. Anti-discrimination laws, anti-retaliation laws, fair housing laws—all of these laws prohibit someone from excluding others from their property. […] Even though Cedar Point said that there’s this exception for places open to the public, it specifically said that when a worker is trying to access company property that’s not open to the public, this holding applies. So I think that anti-discrimination laws, anti-retaliation laws, fair housing laws, all of these are vulnerable to the court’s analysis.

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Veena Dubal

From a purely legal perspective, this case is not just about property rights, it’s also about the association rights of a racial minority workforce. Despite the fact that the [California Agricultural Labor Relations Act (ALRA)] itself emphasizes that the purpose of the act is freedom of association and self-organization, there is no reference whatsoever to the workers’ associational rights in either the decision or in the dissent […] This lack of attention to the association rights of workers was, of course, also apparent in two other Supreme Court cases—Janus and Epic Systems—which, along with Cedar Point, make an inauspicious trilogy of anti-worker cases under the Roberts court […]

I think it’s safe to say that that, read together, Cedar Point, Janus, and Epic Systems not only severely curtailed the ability of workers to confront their employers and their exploitative working conditions, including when their employers have violated the law, but they also have larger democratic implications […] although this is a case that’s arguably about workplace democracy, it’s important to note that workplace democracy, and organized and collective bargaining, are important precisely because they are a countervailing force to the otherwise unbridled power of capital, and of white capital. Specifically, it is very hard to be politically engaged if you can’t put food on the table.

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Amy Kapczynski

There’s another devastating thing about the opinion, which is Breyer’s dissent.  It does carefully take apart some of what’s so bold about the majority’s move, but in the end, it just wants us to go back to the world of regulatory takings law—to the world of the Court saying, “Well, that regulation is ‘too much.’” That framing of the Takings Clause was a modern invention – the idea that takings applies not only if the government expropriates property from somebody (which is probably what most normal people would think the government “taking” property means) but also maybe to zoning [and other conventional government regulations].… [Breyer is] conceding all of the regulatory takings doctrine and saying, “Please just don’t put this law into a new bucket, by making it a ‘per se’ taking, like expropriating property.” Part of what’s so devastating is that the takings doctrine, before Cedar Point, was already a terrible danger to democracy.


Q&A Discussion

Corinne Blalock:

A lot of what’s been talked about in the popular media about this case has been: maybe if we just make just compensation really small, it won’t be a big deal. Or there may be some sort of way we can argue around the holding. If we’re still dealing with this impossible Court […] is there anything we can do from this place?

Bowie:

I think this is one of the most open doctrinal questions. The Supreme Court did not invalidate California’s access rule, it did not strike it down. What it held was that, under the 14th Amendment protection of due process, which involves the Fifth Amendment’s Takings Clause, just compensation is required. But one noteworthy thing about the complaint in this case is that the two growers did not ask for compensation—they asked for an injunction. And what that suggests is just compensation is not what’s being litigated here. It’s not like they want $1 for every organizer who comes on the property; they want this rule struck down.

And in the academic context, there has been a lot of scholarship saying that when just compensation is hard to define, or it doesn’t seem like it has been provided, or there’s no established mechanism for providing it, the solution is not to allow the state to create that mechanism, but just to strike it down. And before he became a senator, when Josh Hawley was writing in law reviews, he wrote an article that just listed examples of when the Court has struck down laws under the Takings Clause, instead of requiring just compensation for the taking.

As with the four different exceptions that the Court lists, I think there’s a lot of room for litigators to maneuver to defend, say, an eviction moratorium from a takings challenge, or a rent control law from the takings challenge…or literally all laws from a takings challenge.

What this case suggests to me is that all of these doctrines are just incredibly, incredibly manipulable, so it ultimately comes down to the discretion of the justices. And it’s a discretion that the justices are willing to exercise against democracy and against challenging these forms of domination. It’s incredibly important and relevant that two months after Cedar Point, when the federal eviction moratorium went before the Supreme Court, the opinion emphasized that an eviction moratorium interferes with landlords’ right to exclude renters. The Court struck down the eviction moratorium on statutory grounds, yet nevertheless threw in this right to exclude.

I think that litigation is going to be important in the future as a defensive strategy for trying to get the Court not to expand the scope of its rule. But ultimately, it’s really subject to discretion, so what’s the response? I think the response will roughly be the same as the response to things like Lochner or Dred Scott, or all of the Court’s other bad rulings, which was not, “Oh, the justices had a change of heart,” it was change in personnel driven by mass mobilization and social movements.

Dubal:

I agree with that 100%… on the organizing end of things, this is what social movement theorists might call a political opportunity. There hasn’t been a lot of organizing activity in California in the agricultural sector for a long time, and I think that all of a sudden, a lot of lawmakers are talking about the UFW, particularly in the context of the pandemic and these workers being essential workers and also dying in the fields and not having access to unemployment insurance, etc. I think that, in addition to on-the-ground mobilization, there are actually some interesting creative legislative responses to Cedar Point that might be imagined in the coming years, to really foster the right of access in line with the majority court’s opinion here, and to draw attention to the need to grow the movement on the ground, which will ultimately result in the things that that Niko articulated—including a change of personnel, so that we have the right people making the discretionary decisions.

Kapczynski:

I think it’s going to be really important for people who do read Supreme Court cases to translate their implications for the public, because as Niko pointed out, there’s been a certain way of consuming Cedar Point that it’s maybe “not that bad.” […] But there are still pieces missing in our ecosystem, in terms of people writing more popularly about how to understand what the Court is doing.  These are really important to helping popular mobilization. People who are in law schools and academic contexts and journalists can really play a role here, and I think that’s one piece of the organizing puzzle.

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Bowie:

Where I am optimistic is recognizing that in 1965 when the first contracts were won on these California farms, the law was even worse. There was no ALRA, there was no protection, if anything courts were going to enjoin these sorts of strikes and boycotts. But the creativity manifested in the form of creative forms of exercising popular power—through things like the boycott—and not necessarily just creative litigation strategies…I think that’s always going to be true. No matter how bad the law gets, there’s always the potential for popular mobilization and so that keeps me optimistic […]

Dubal:

In labor law, there’s a chicken-and-egg dispute that that we have over and over and over again: whether you focus on growing individual or collective rights for workers through the law, or whether the law sort of follows the social movement. I think that what you just articulated very much speaks to the latter position, which I adhere to, which is really that the kinds of wildcat strikes that we’re seeing all over the country—the kinds of impromptu protests and walk-outs and such—really lead me to believe that we’re hopefully in a moment of great transformation, regardless of how the Court might think about property versus associational rights, with regard to how workers and people are thinking about them.

Kapczynski:

That’s a lovely place to end, thank you both so much.

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