How Elon Musk and the Supreme Court could dismantle workers’ rights

A very real prospect, though he’ll always be a loser

Welcome to a Thursday night edition of Progress Report.

There’s a lot to cover right now, including a juicy follow-up on Christopher Rufo’s phony devotion to academic rigor and a whole lot of action happening in state legislatures.

I plan on publishing the legislature kickoff by Saturday, the Rufo-related piece a few days after that, and a big interview with a very compelling Senate candidate by the middle of next week. Plus, there’s an update coming to the ballot initiative mega-list. Whew!

But tonight, it’s the first edition of a new recurring feature that dives deep into the hidden motivations and machinations of the antidemocratic elite.

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Donald Trump has become the avatar for the threat of fascism in the United States, which has made this year’s presidential election into a referendum on the future of our democracy. That’s not untrue, but even a humiliating defeat for Trump in November would not neutralize the bigger looming threat.

While Trump is a blunt instrument, eager to smash government and social institutions from the outside, the elite far-right is more focused on seizing and dismantling the foundations of American life from the inside. An unholy alliance between religious fanatics, ideologues, corporations, and many ultrawealthy creeps are responsible for much of our societal decay, and with the capture of the federal judiciary now complete, their work has only been expedited.

The attacks come from all angles, so it can be hard to recognize them in real-time. The goal of this new segment of the newsletter is to track those stories and highlight their connections to create a more cohesive understanding of the challenges we’re facing. We’ll start right now.

Elon Tries to Dismantle the NLRB:

On Wednesday, the NLRB issued a complaint against SpaceX alleging that the company violated federal labor law by firing eight workers who wrote a letter critical of CEO Elon Musk. It wasn’t a particularly unusual complaint, especially by the current labor board’s standards. The proposed penalties were actually very minimal — the NLRB wants SpaceX to read a notice to employees, put up a poster that lists employees’ rights, undergo a training for management, and apologize to the impacted workers.

Yet Musk, who has been openly anti-union for years, responded to the proposed slap on the wrist with a nuclear missile, filing a lawsuit aimed at stripping the agency of nearly all of its power. Specifically, the suit alleges that NLRB’s system of internal courts, which adjudicate cases brought by the board’s lead prosecutor, exceed the agency’s constitutional authority. This is far more dangerous than it sounds.

It’s the same argument that was recently presented to the Supreme Court in Jarkesy v. SEC, a lawsuit challenging the constitutionality of the SEC’s own enforcement mechanisms. The case, brought by a conservative talk radio host who was fined $300,000 for bilking investors in his failed hedge funds, should have never gotten this far given the decades of cases precedent. But the judiciary is now stocked with judges incubated at the Federalist Society, the reactionary legal organization funded by conservative billionaires and corporations.

The high court, which heard oral arguments in late November, was quite amenable to attack on the regulatory body, and is seen as likely to at least diminish the power of the SEC’s administrative law courts. Instead of trials overseen by expert judges, they would reroute complex cases to federal courts, which are largely run by conservatives driven by ideology, not the law.

Musk’s lawsuit builds on this case, and depending on the Supreme Court’s decision in Jarskey, the new precedent may give the richest man in the world may be given carte blanche to harass, fire, and otherwise block his workers’ from exercising their constitutional right to organize. That, naturally, falls under the First Amendment, but don’t tell that to “free speech absolutist” Elon Musk.

We’re looking at what could be an existential blow to an NLRB that’s been recently revived and returned to its intended role as an advocate for workers. General Counsel Jennifer Abruzzo has been aggressively pushing to overturn anti-union precedents that stripped the board of its power to force employers to recognize unions and dole out meaningful fines for illegal firings. The flurry of enforcement activity has helped to encourage more militancy among workers and driven new industries to organize.

I’ve been told that Abruzzo is also working on a proposal that would force corporations like Amazon and Starbucks to stop indefinitely dragging out contract negotiations, which would be another huge boon to organizers.

Those companies are already suing over the various decisions made by the labor board’s administrative law judges, but winning an appeal after an extensive trial is far more difficult than starting fresh in front of judges who don’t understand what they’re hearing. Labor violations would likely skyrocket, and as other agencies are gutted, regulation of business would reach new lows.

More on the “Freedom to Discriminate”

I wrote a few weeks ago about the high-stakes case in Oklahoma over a state board’s approval of what would be the first publicly funded religious charter school in the nation. The school is being represented by the Alliance Defending Freedom, a far-right legal organization that is successfully perverting the concept of “religious freedom” into a freedom to discriminate on the state’s dime.

A somewhat similar lawsuit is being pursued in Colorado by two Catholic preschools. The case, which began oral arguments in federal court on Thursday, centers on the state’s decision to block the two Catholic schools from participating in its new universal preschool program after school administrators would not agree to abstain from discriminating against young children.

Colorado requires schools to sign a basic standards agreement that requires providers to provide equal opportunity for enrollment, regardless of “race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability."

The Denver Archdiocese advises Catholic schools to treat kids from same-sex parents differently and to flat out not allow trans kids in their buildings. Instead of using a local law firm, the schools went with a DC-based organization known as the Becket Fund for Religious Liberty, which has the same basic mission as the Alliance Defending Freedom.

Should the two Catholic schools win this case, it would open up the state’s $322 million universal preschool budget to countless bigoted religious programs, which could cash in on money intended for low-income kids who attend secular mainstream schools. This is one of the major goals of conservative education activists, who are ultimately seeking a Supreme Court decision that wouldn’t just enable religious schools to take vouchers, but fully tear down the wall between church and state.

Republicans try to sabotage the abortion rights amendment:

There is an overarching philosophy to this conservative hostile takeover, but it has nothing to do with the constitution or “originalism.” The one and only aim of this movement is to accumulate power and maintain control by any means necessary. Even the decisions of a conservative Supreme Court are only gospel when they align with that pursuit of total power.

We’re seeing that play out in Ohio right now, where Republicans in the legislature have been making noise about finding ways to neutralize and essentially toss out the abortion rights amendment approved by voters back in November. On Thursday, two lawmakers filed a bill that would give the General Assembly full control over the implementation of the constitutional amendment, known as Issue 1.

The bill would cut out all levels of the state judiciary, end all lawsuits concerning the amendment, and vacate all prior court decisions — including one by the state Supreme Court that dismissed a lawsuit that sought to implement a six-week abortion ban that was passed in 2019.

Assembly Speaker Jason Stephens said last November that he does not plan to bring up such a bill for a vote, but he only has so much power given the makeup of the legislature. The GOP has supermajorities in both houses of the Ohio legislature thanks to egregious gerrymanders that were recently approved by the same state Supreme Court that representatives now want to strip of power.

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