How would terms limits on the Supreme Court justices impact employment law?


Earlier this week, The Associated Press-NORC Center for Public Affairs Research released the results of a poll, which found that 67% of Americans support term limits for Supreme Court justices, including a majority of Democrats and Republicans.

Yesterday, a few members of the House introduced a new bill called the Supreme Court Tenure Establishment and Retirement Modernization Act, or the Supreme Court TERM Act for short. A press release noted that the Supreme Court TERM Act would effectively limit Supreme Justices to terms or regular active service of no more than 18 years, after which they would assume “senior status.” The Act would also establish regular appointments of new Supreme Court justices in the first and third years following a presidential election as the sole means of Supreme Court appointments.

This type of legislation has echoes in appointments to administrative agencies. For example, when a Republican sits in the Oval Office, the President appoints employer-friendly members to the National Labor Relations Board, which often leads to more employer-friendly decisions from the Board. Conversely, with President Biden in office, the Board has become more employee/union-friendly.

So, I wondered whether the Supreme Court TERM Act could also impact how the Supreme Court decides workplace cases. Based on recent jurisprudence, I’d say minimal.

Let’s look at some decisions over the past decade where “politics” seemingly played no role:

Morgan v. Sundance, Inc. (2022) All nine Supreme Court justices agree that courts must “place arbitration agreements on an equal footing with other contracts” when determining whether the person seeking a waiver must prove prejudice.

Our Lady of Guadalupe School v. Morrissey-Berru (2020) Seven justices conclude that the First Amendment protects religious employers from employment-discrimination claims that employees who carry out religious functions assert.

Bostock v. Clayton County (2019). Six Supreme Court justices (including Justices Gorsuch and Roberts) conclude that Title VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation and gender identity.

Babb v. Wilkie (2019). Eight Supreme Court justices agree that the Age Discrimination in Employment Act of 1967 prohibits any age consideration in federal-sector employment decisions. Only Justice Thomas dissents.

Integrity Staffing Solutions, Inc. v. Busk (2014) All nine justices agree that companies need not pay employees for time spent passing through security checkpoints, where the checkpoints were not integral to their principal duties as employees.

Young v. United Parcel Service, Inc. (2014). Justices Alito and Roberts and four other justices and decide  that the Pregnancy Discrimination Act requires courts to consider whether an employer’s policies treat pregnant workers less favorably than non-pregnant workers with similar inabilities to work.

Were these some 5-4 decisions along the way? Sure. Here is another example. The recent decision to reverse the Executive Order mandating COVID-19 vaccinations for larger businesses was a 6-3 per curium decision.

Overall, however, there does not appear to be much correlation between Supreme Court appointments and its handling of employment law matters. These cases impacting the workplace don’t get decided based on perceived politics as often as one might think.

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