This isn’t an article about how Republicans shut down the government because they hate that the President is black. This is an article about how racism caused the government to shut down and the U.S. to teeter on the brink of an unprecedented and catastrophic default.

I understand if you’re confused. A lot of people think the only way that racism “causes” anything is when one person intentionally discriminates against another because of their color of their skin. But that’s wrong. And understanding the history of the forces that produced the current crisis will lay plain the more subtle, but fundamental, ways in which race and racism formed the scaffolding that structures American politics — even as explicit battles over race receded from our daily politics.

The roots of the current crisis began with the New Deal — but not in the way you might think. They grew gradually, with two big bursts in the 1960s and the 1980s reflecting decades of more graduated change. And the tree that grew out of them, the Tea Party and a radically polarized Republican Party, bore the shutdown as its fruits.

How The New Deal Drove The Racists Out

In 1938, Sen. Josiah W. Bailey (D-NC) filibustered his own party’s bill. Well, part of his party — Northern Democrats, together with Northern Republicans, were pushing an federal anti-lynching bill. Bailey promised that Southern Democrats would teach “a lesson which no political party will ever again forget” to their Northern co-partisans if they “come down to North Carolina and try to impose your will upon us about the Negro:”

Just as when the Republicans in the [1860s] undertook to impose the national will upon us with respect to the Negro, we resented it and hated that party with a hatred that has outlasted generations; we hated it beyond measure; we hated it more than was right for us and more than was just; we hated it because of what it had done to us, because of the wrong it undertook to put upon us; and just as that same policy destroyed the hope of the Republican party in the South, that same policy adopted by the Democratic party will destroy the Democratic party in the South.

Bailey’s rage at the affront to white supremacy was born of surprise. Until 1932, the South had dominated the Democratic Party, which had consistently stood for the South’s key regional regional interest — keeping blacks in literal or figurative fetters — since before the Civil War.

But the Depression-caused backlash against Republican incumbents that swept New Yorker Franklin Roosevelt into the White House and a vast Democratic majority into Congress also made Southerners a minority in the party for the first time in its history. The South still controlled the most influential committee leadership votes in Congress, exercising a “Southern Veto” on race policy. The veto forced FDR to stay out of the anti-lynching fight (“If I come out for the anti-lynching bill, [the southerners] will block every bill I ask Congress to pass to keep America from collapsing,” he lamented).

The veto also injected racism into the New Deal. Social Security was “established on a racially invidious, albeit officially race-neutral, basis by excluding from coverage agricultural and domestic workers, the categories that included nearly 90 percent of black workers at the time,” University of Pennsylvania political scientist Adolph Reed Jr.wrote in The Nation. “Others, like the [Civilian Conservation Corps], operated on Jim Crow principles. Roosevelt’s housing policy put the weight of federal support behind creating and reproducing an overtly racially exclusive residential housing industry.”

Yet, Reed notes, the New Deal not only benefited blacks, but brought them to a position of power in the Democratic Party. “The Social Security exclusions were overturned, and black people did participate in the WPA, Federal Writers’ Project, CCC and other classic New Deal initiatives, as well as federal income relief,” he reminds us. “Black Americans’ emergence as a significant constituency in the Democratic electoral coalition helped to alter the party’s center of gravity and was one of the factors–as was black presence in the union movement–contributing to the success of the postwar civil rights insurgency.”

Hard evidence of the Northern Democrats’ radicalization on civil rights, outflanking the GOP, can be found by the early 1940s. UC-Berkeley’s Eric Schickler and coauthor Brian Feinstein built a database of state party platforms from 1920-1968 and examined their positions on African-American rights. They found that “the vast majority of nonsouthern state Democratic parties were clearly to the left of their GOP counterparts on civil rights policy by the mid-1940s to early 1950s.” African-Americans and other sympathetic New Deal Coalition constituencies, like Jews and union leaders, deserve the bulk of the credit — these new Northern Democrats made supporting civil rights a litmus test for elected Democratic officials. That explains why, from the Early New Deal forward, congressional Northern Democrats voted more like Northern Republicans than their Southern brethren on civil rights.

Schickler and Feinstein pair the shift on civil rights to the parties’ broader post-New Deal ideological shifts. New Deal liberalism’s vehement support for government intervention in the economy made Democrats more open to the sorts of intrusive economic regulations, like desegregating private businesses, that civil rights campaigners demanded. Meanwhile, “the GOP’s ties with chambers of commerce, manufacturers’ associations, real estate groups, farm lobbies, and other organizations opposed to the increased government oversight of private enterprise that would come with fair employment and other civil rights legislation encouraged the GOP’s drift toward racial conservatism.” As Speaker of the House Joe Martin (R-MA) told an assembly of black Republicans in 1947:

I’ll be frank with you: we are not going to pass a [non-discrimination in private business bill], but it has nothing to do with the Negro vote. We are supported by New England and Middle Western industrialists who would stop their contributions if we passed a law that would compel them to stop religious as well as racial discrimination in employment.

Republican economic libertarianism, together with its gradual embrace of traditionally Southern “states rights” arguments to as weapons in the war on the New Deal, set the stage for the eventual white flight from the Democratic Party.

And Southern Democrats, without whose votes the New Deal never could have happened, were willing to sacrifice their commitment to economic liberalism on the altar of white supremacy. Historian Ira Katznelson, whose 2013 work Fear Itself focuses on the role of Southern Democrats in the New Deal, analyzed Congressional votes from 1933 to 1950 to better understand the political alliances of the time. Katznelson and his coauthors focus on the votes of Southern Democrats on six issues: “planning, regulation, expansive fiscal policies, welfare state programs, a national labor market and union prerogatives, and civil rights.”

The Southerners, as Democrats, strongly supported the first four, but bucked the Northern wing of the party on the last two. But why labor in addition to civil rights? Katznelson et al. find a precipitous dropoff in Southern support for pro-labor laws during World War II, one of the two key reasons being that “wartime labor shortages and military conscription facilitated labor organizing and civil rights activism.” “Labor market and race relations rends and issues,” they found, had become “conjoined.” For Southern Democrats, racism trumped liberalism.

Hence the famous Dixiecrat revolt of 1948, when Strom Thurmond and likeminded Southerners temporarily seceded from the Democratic Party over Harry Truman and the Democratic platform’s support for civil rights. The tacit bargain that Katznelson documents during the Roosevelt Administration, in which the Northern Democrats would get their New Deal if the Southern Democrats got their white supremacy, became untenable.

But the Dixiecrats weren’t ready to migrate en masse to Party of Lincoln just yet. Something needed to happen to make the Republican Party shed its commitment to leading on civil rights wholesale. That “something” was the rise of the modern conservative movement.

‘The Great White Switch’

Earl Black and Merle Black are twin brothers. Both are political scientists at (respectively) Rice and Emory University. The twins, frequent coauthors, are widely considered to be the deans of the study of Southern politics.

In their book The Rise of the Southern Republicans, the Blacks pinpoint two key transition points for Southern whites when the trends we’ve already seen produced truly marked change. By the 1950s, the splits between Northern and Southern Democrats in Congress had become irreconcilable. The party’s leadership was “refusing to call party meetings” for fear of catastrophe.

The Southern Democrats had to form alliances with the more conservative wing of the Republican Party. In a reverse replay of the South’s deal with Roosevelt and Northern Democrats, the Blacks found, Southern Democrats helped Republicans fight Truman’s economic policy while Republicans protected the Southern right to filibuster, allowing them to retard progress on civil rights without alienating black voters by voting against any particular piece of civil rights legislation. This “Inner Club” of Southern Democrats and conservative Republicans “informally set the limits on passable legislation.”

But it wasn’t until Barry Goldwater and the rise of the modern conservative movement that this marriage was formally consummated. Goldwater lost all but six states — Arizona, his home, and five Deep South states. It was the first time the GOP had prevailed at the presidential level in the South in the party’s history. Republicans have held the South since.

Goldwater, a Sun Belt Senator who believed in integration, seemed like an odd choice to inspire Southerners to leave LBJ, a Texan with a storied racist past. But that surface level-analysis entirely misses the role of the Goldwater-led conservative movement in the Southern imagination.

By the Johnson-Goldwater election, it had become clear that overt racism and segregationism was politically doomed. Brown v. Board of Education and LBJ’s support for the 1964 Civil Rights Act saw to that. As this scary recognition dawned on Southern whites, they began searching for a new vehicle through which to shield themselves and their communities from the consequences of integration. The young conservative movement’s ringing endorsement of a minimalist federal government did the trick — it provided an on-face racially neutral language by which Southerners could argue against federal action aimed at integrating lily-white schools and neighborhoods.

Kevin Kruse, a Princeton historian whose work focuses on the South and the conservative movement, finds deep roots in segregationist thought for this turn. “In their own minds, segregationists were instead fightingfor rights of their own,” Kruse suggests. These “rights” included “the ‘right’ to select their neighbors, their employees, and their children’s classmates, the ‘right’ to do as they pleased with their private property and personal businesses, and, perhaps, most important, the ‘right’ to remain free from what they saw as dangerous encroachments by the federal government.”

Kruse traces this language through white resistance to desegregation from the 40s through the 60s, using a detailed examination of “white flight” in Atlanta as a synecdoche. In the end, he finds, “the struggle over segregation thoroughly reshaped southern conservatism…segregationist resistance inspired the creation of new conservative causes, such as tuition vouchers, the tax revolt, and the privatization of public services.” The concomitant rise of the modern conservative movement and the civil rights movements’ victories conspired to make Southern whites into economic, and not just racial, conservatives.

Kruse’s theory isn’t based on mere anecdote. M. V. Hood, III, Quentin Kidd, and Irwin L. Morris’ book The Rational Southerner arrays a battery of statistical evidence correlating Southern whites’ Republican turn with black voter mobilization. The more politically active blacks became, their data suggest, the more whites flocked to conservative Republicans as a counter.

So from 1964 on, conservative white Southerners voted against Democrats at the presidential level. But the en masse formal switch in party identification until Reagan. “Reagan’s presidency,” Merle and Earl Black write, “was the turning point in the evolution of a competitive, two-party electorate in the South. The Reagan realignment of the 1980s dramatically expanded the number of Republicans and conservative independents in the region’s electorate.” The Blacks attribute this to a combination of Reagan’s winning political personality and (more persuasively) the relative prosperity of the 1980s. Not only were white conservatives ideologically inclined to support Reagan’s Republican Party, but they became wealthier on his watch.

Reagan-era conservatism also left behind the naked racism that had driven Southern Democrats out of the party, which the civil rights movement had rendered unacceptable. By 1983, even Strom Thurmond, the former Dixiecrat candidate for President, voted to make Martin Luther King, Jr.’s birthday a national holiday. Reagan-era conservatism, while hardly above race-baiting, became far more about foreign policy hawkishness, Christian-right style social conservatism, and — most importantly for present purposes — free market economics.

The South’s conversion to movement conservatism led to local and Congressional Republican victories throughout Dixie. These culminated in the Gingrich Revolution in 1994, when hard-line Southern conservatives took charge of the Republican Congressional delegation, seemingly for good.

Sen. Bailey’s prediction had finally come true. The Democrats’ about-face on race cost them the South.

The Legacy Of The Democratic South’s Rebellion: The Tea Party

We all know what happens next. The Southern conservative takeover of the Republican Party pushes out moderates, cementing the party’s conservative spiral. This trend produces the Tea Party, whose leading contemporary avatar — Ted Cruz — engineers the 2013 shutdown and risk of catastrophic default.

So we can draw a tentatively straight line between the last 80 years of racial politics and this week’s political crisis. Aside from being an interesting point of history, what does that tell us?

First, that the shutdown crisis isn’t the product of passing Republican insanity or, as President Obama put it, a “fever” that needs to be broken. Rather, the sharp conservative turn of the Republican Party is the product of deep, long-running structural forces in American history. The Republican Party is the way that it is because of the base that it has evolved, and it would take a tectonic political shift — on the level of the Democrats becoming the party of civil rights — to change the party’s internal coalition. Radicalized conservatism will outlive the shutdown/debt ceiling fight.

Second, and more importantly, the battle over civil rights produced a rigidly homogenous and disproportionately Southern Republican party, fertile grounds for the sort of purity contest you see consuming the South today. There’s no zealot like a new convert, the saying goes, and the South’s new faith in across-the-board conservatism — kicked off by the alignment of economic libertarianism with segregationism — is one of the most significant causes of the ideological inflexibility that’s caused the shutdown.

That’s not to dismiss the continued relevance of race in the Southern psyche. There’s no chance that, when 52 percent of voting Americans are over 45, the country has just gotten over its deep racial hang-ups. Read Ta-Nehisi Coates’ masterful “Fear of a Black President” if you don’t believe me.

Naturally, the South remains Ground Zero. One 2005 study thatmeasured racial animus found that Southern whites were “more racially conservative than whites elsewhere on every measure of racial attitudes ordinarily used in national surveys.” And Obamacare is a racially polarized issue. Brown University’s Michael Tesler found, in 2010, that there was an astonishing 20 point higher racial gap on health policy in 2009 than there was in the early 90s. In Tesler’s experiments, subjects’ responses to statements about health policy were “significantly more racialized” when the statement was attributed to President Obama than President Clinton.

So it’d be implausible, to put it mildly, to say that modern racism has nothing to do with the shutdown fight. That being said, it’s hard to pinpoint exactly what its role is, and it’d be overly simplistic to reduce the whole shebang to racial animus. One of historical racism’s many political children — our right-polarized South — has to play an important role, one that’s independent of ongoing racial prejudice.

The basic idea goes something like this. Southern white flight from the Democratic Party, motivated as it was by the compatibility of purist economic libertarianism with de facto segregation, produced especially conservative Republicans. This hardline opposition to intervention in the marketplace survived the death of open segregationism, and as Southerners became more and more critical to the Party’s national fortunes, their brand of libertarianism gradually began to dictate the party’s ideological agenda. Primaries enforced the party line nationally, driving out moderate non-Southern Republicans and making the party’s representatives nationally fit the Southern-cast mold.

There’s certainly suggestive evidence to this point. Take a look at this chart of trends in House DW-NOMINATE scores — a measure of a legislator’s distance from the ideological mean of the time:

Notice how that sharp tick toward conservatism among Republicans starts around 1976, just when Southern whites were abandoning the Democratic Party in droves. At the same time, Southern Democrats start looking more and more like Northern Democrats (the story is basically the same in the Senate). It seems like Republicans became more conservative just as they were starting to become more Southern.

There’s more. “After the 1994 elections, white Southern Republicans accounted for sixty-two members of the 230-member House GOP majority,” Ari Berman writes in the most recent edition of The Nation. “Today, white Southern Republicans account for ninety-seven members out of the 233-member House GOP majority.” The percentage of Southerners in the GOP House caucus, Berman reports, has gone up in every election but one since 1976.

These Southerners also make up large percentages of the House’s most conservative blocs. Though Southerners make up a little over 30 percent of the U.S. population and 42 percent of House Republicans, a full 60 percent of the House Tea Party Caucus is Southern. Southerners comprise 50 percent of the Republican Study Committee, the House “cabal” so powerful in the past three years that, according to National Journal, ” the RSC’s embrace or rejection of any legislative effort has become the surest indicator of whether it will pass the chamber.” 19 of the 32 House Republicans the Atlantic deemed “most responsible” for the shutdown hail from the South.

Southern Congresspeople voted consistently more conservatively than their northern colleagues on the “fiscal cliff” deal that resolved the last debt ceiling standoff. Southern Republicans in more competitive districts, according to The New Republic’s Nate Cohn, voted more ideologically than Northern Republicans in safe GOP districts.

This shouldn’t surprise anyone: the South has been setting the Republican agenda since the 1994 Gingrich Revolution, both at the Congressional and the base level. Political scientist Niccol Rae conducteda series of interviews with House members in power from 1994-1998, finding that the “southern members of the Republican class of 1994 have acted as the ‘conscience’ or ‘keepers of the flame’ of this Republican revolution.” The enduring consequence, according to Rae, was finalizing the long-term demographic trends that were making the Southern bloc into “the dominant element, regionally, ideologically, and culturally in the congressional GOP.”

As the Southern faction became the face of the GOP in the mid-90s, the GOP’s electorate became a lot more conservative nationally. Panel data reviewed by Alan Abramowitz and Kyle Saunders found that, from 1992-1996, ideological conservatives joined the Republican Party in droves. That’s because Southern elites played a key “signalling” role; their prominent national conservatism signaled to conservatives around the country that the Republican Party was theirs.

Penn’s Matthew Levendusky, who literally wrote the book on conservatives “sorting” themselves into the Republican Party, says that “even when the data are consistent with a nationalization hypothesis, the South still played a crucial role in the sorting process because of the key role of Southern elites.” As conservative Southern elites took over the Republican Party, hyper-conservative Americans followed, becoming the GOP primary voters we know and love today.

So, to sum up: the South’s race-inspired conversion to radical conservatism made the GOP pure enough to threaten default over Obamacare in two distinct ways. First, Southern elected leaders are simply more conservative than other Republicans, and are making up a larger-and-larger percentage of total Republican seats in the House. Second, Southern elites send out signals that drive out moderate primary voters throughout the country, making even non-Southern Republicans more conservative.

In Dinotopia, a famous children’s book, the residents of a fictional dinosaur-human city use a water clock shaped like a helix. It’s a reflection of their novel concept of time. Instead of thinking of the passage of time as either linear or cyclical, they see it as a spiral: history forever repeats itself, but with new, unpredictable twists tossed in.

It’s a neat metaphor for the role of North-South conflict in the United States. The basic cleavage between North and South, began by slavery, has set the fault lines of American politics again and again. This time, the crisis isn’t as severe as the civil war, nor as divisive as the battle over civil rights. But make no mistake: today’s Republican radicalism, with all of its attendent terrifying brinksmanship, is the grandchild of the white South’s devastating defeats in the struggle over racial exclusion.

*****

It’s become a cliché at the beginning and end of each Supreme Court term to comment on how important the term is or will be, and how the justices are hearing a myriad of major cases. And certainly after two terms featuring high profile cases on health care, immigration, voting rights and marriage equality — in addition to under the radar decisions blasting worker and consumer rights — there can be little doubt of the Court’s immense power to do harm (and its less frequently exercised power to do good).

The term that begins this fall, however, has the potential to be even more significant that the previous two. By this time next year, fair housing law could be neutered, unions could be hobbled, billionaires could be free to spend millions to put their favorite candidates in office, and the right to choose an abortion could be meaningless. With a wave of their hand, five conservative justices could achieve outcomes that Scott Walker, Rick Perry and Sheldon Adelson could never dream of accomplishing even at the height of their power.

Here’s a taste of what’s at stake in the next Supreme Court term:

Abortion

The Supreme Court has not heard a major abortion case since 2007, when the conservative justices limited reproductive freedom in part because “some women come to regret their choice to abort.” Next term, they could hear two. The first, McCullen v. Coakley, concerns a Massachusetts law that prohibits people who don’t have business at a “reproductive health care facility” — most often, abortion protesters — from congregating within a buffer zone around the clinic’s entrance, exit or driveway. In what the lower court labeled an argument that “elevates hope over reason,” abortion opponents claim that the buffer zones violate Citizens United and a bevy of other First Amendment decisions. If five justices ultimately agree with this argument, it could not only wipe out the Massachusetts law, but also potentially endanger a federal law ensuring women can access clinics without intimidation, depending on the breadth of the Court’s decision.

While McCullen concerns how much harassment a woman may be subjected to before they can obtain an abortion, another case potentially strikes at the core of the right to choose. Although the specific issue at stake in Cline v. Oklahoma Coalition for Reproductive Justice concerns whether states can ban off-label use of abortion drugs, the case tees up the issue of how far states can go in restricting abortions by enacting laws ostensibly directed at making them safer. The Constitution quite correctly permits states to enact laws ensuring abortions are performed safely — otherwise, a state could not require surgical abortions to be performed by trained surgeons or ensure that operating rooms are sterile. Abortion foes, however, routinely use this power as a fig leaf to enact laws that can be spun as safety regulations, but which really exist for the sole purpose of restricting abortion. Common examples are bills requiring clinics have extra-wide hallways or to only employ doctors with irrelevant credentials. Extreme examples could force doctors to complete a 10,000 hour course before they can perform an abortion, or forbid an abortion clinic from operating unless it also qualifies as a level I trauma center.

Because of an unusual procedural issue involving a question the justices want the Oklahoma Supreme Court to answer, it is possible that the justices will not ultimately decide this case. Should they do so, however, they could potentially permit abortion foes to enact laws that make it literally impossible for abortion clinics to operate.

Campaign Finance

The Supreme Court’s Citizens United decision allowing corporations to spend unlimited money to shape the outcomes of elections is widely viewed as the high water mark in the justices’ willingness to allow big money to influence elections. Yet, after the Court hands down its opinion in McCutcheon v. Federal Election Commission — a case whose plaintiffs’ include the Republican National Committee — Citizens Unitedcould look quaint.

Although Citizens United permits unlimited donations to third-party groups such as SuperPACs which are ostensibly separate from candidates or political parties, the conservative justices have not yet struck a six-figure cap on total donations to candidates, political party committees and similar organizations. As the lower court explained in upholding this cap, “Eliminating the aggregate limits means an individual might, for example, give half-a-million dollars in a single check to a joint fundraising committee . . . because party committees may transfer unlimited amounts of money to other party committees of the same party, the half-a-million-dollar contribution might nevertheless find its way to a single committee’s coffers.” In other words, this case could conceivably allow billionaires to launder massive dollar donations to single candidates — who would no doubt feel very grateful to those billionaires should they win their election.

Separation of Church and State

Retired Justice Sandra Day O’Connor long provided the fifth vote to strike down government efforts to promote religious views. As she warned in one of her final opinions on the bench, due to the “violent consequences of the assumption of religious authority by government . . . Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

In Town of Greece v. Galloway, the Supreme Court’s new majority will have the opportunity to trade a system that has served us so well for one that has served others so poorly. Justice O’Connor’s opinions relied on her view that government can neither endorse a religious view nor convey a “message of endorsement to the reasonable observer.”Galloway, however, tees up the question of whether such endorsements will now be permissible because O’Connor is no longer around to protect her legacy.

Housing Discrimination

Discrimination is often subtle. Indeed, discrimination lawsuits rarely uncover a smoking gun document where the defendant announces a racist intent. Nevertheless, there can be little doubt that race discrimination exists. In the housing sphere, a recent study on behalf of the Department of Housing and Urban Development found that black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than whites with similar credit qualifications and housing interests. During the subprime lending boom, African Americans with good credit scores were 3.5 times as likely as whites with good credit scores to receive higher-interest-rate loans, and Latinos were 3.1 times as likely to receive such loans. And the Federal Reserve found that in 2009, African Americans were twice as likely to be denied a loan, even controlling for income and other qualifying criteria.

These disproportionate impacts have become increasingly crucial to policies and legal challenges that seek to address housing discrimination, and proving discrimination through “disparate impact” has beenaccepted by all nine federal appeals courts to consider the question. This past January, HUD even issued a regulation interpreting the Fair Housing Act as allowing claims of disparate racial impact. But the Township of Mount Holly, New Jersey is now asking the Supreme Court to reverse all of that — a risk given the Roberts Court’s hostility to the Voting Rights Act, affirmative action, and other means for rooting out racial discrimination.

In 2011, future Secretary of Labor Tom Perez averted a Supreme Court ruling on this issue by asking the city of St. Paul, Minn. drop its appealafter and preserve existing precedent. Once again, this case may not make it to a Supreme Court ruling, as the parties are reportedly close to a potential settlement.

Affirmative Action

Last term, the justices surprised many court-watchers by leaving affirmative action jurisprudence in place, but not before warning that lower court judges better apply a whole lot of scrutiny in analyzing any race-based college admissions policy. This term, they have another opportunity to take a cut at policies that diversify universities and workplaces — and at least two U.S. Supreme Court precedents on race. While the justices last term considered whether universities can considerrace in selection, they will this time consider whether states can banconsideration of race in university admissions.

The U.S. Supreme Court made clear in several previous cases that states cannot force minorities to jump through special hoops to pass laws that benefit them as a group. The state ban does just that. Because it is a constitutional amendment, it requires nothing less than a second constitutional amendment to repeal — a burden that places affirmative action advocates on unequal footing. As the appeals court judges explained it, this means that a student seeking to be admitted because family member is an alumnus of the school could appeal directly to the university, while a minority student seeking to reinstate affirmative action has no other choice but to “attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2.” The lower court’s opinion continued: “The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

The Future of Unions

Until last July, the most important case facing the justices this term appeared to be National Labor Relations Board v. Noel Canning, a case that could have potentially rendered much of federal labor law unenforceable and left the right to organize completely toothless. The National Labor Relations Board has exclusive authority to enforce much of the law protecting workers and unions, and a series of decisions by conservative court of appeals judges declaring President Obama’s recess appointments to this board unconstitutional threatened to shut the board down. In July, Senate Republicans agreed to stop preventing anyone from being confirmed to this Board thanks to Democrats’ threat to invoked the so-called “nuclear option,” effectively removing the risk that American labor law would shut down entirely for as long as the Board’s current members sit. Nevertheless, an important remaining question in the Noel Canning case is whether the decisions reached by Obama’s recess appointees before Republicans lifted their blockade on confirmations are valid. If the Court holds that they are not, literallyhundreds of decisions could be invalidated and would need to be relitigated.

With Noel Canning somewhat defanged by the confirmation of new NLRB board members, the most important labor case facing the justices this term is probably Unite Here Local 355 v. Mulhall. Unite Here concerns the future of “neutrality agreements,” agreements where an employer agrees to remain neutral on a union’s attempt to organize its workforce, and sometimes provide other concessions to the union, rather than face a potentially contentious process that can divide a workforce and generate animosity with the union that may ultimately represent its workers. Non-union shops are notoriously difficult to organize under existing federal labor law, so the presence of a neutrality agreement often determines whether a unionization effort will be successful. According to a 2007 paper examining neutrality agreements, less than one-fifth of newly organized employees were unionized under the NLRB elections process that typically applies in the absence of an agreement. By contrast, “the Service Employees, the Needletrades, textile, Hotel and Restaurant Employees, and the Autoworkers all report that a plurality or majority of newly organized members have come” after a contractual agreement with the employer to remain neutral.

Several years ago, anti-union advocates developed a legal argument that could potentially shut these agreements down, or, at least, limit the ability of unions and employers to reach such agreements. Citing an anti-bribery law enacted in 1947, which forbids employers from paying “any money or other thing of value” to a labor union seeking to represent its workers, these advocates claim that neutrality agreements violate this ban on companies bribing unions. Initially, this argument did not meet with much success. Indeed, then-Judge Michael Chertoff, who later became Homeland Security Secretary under President George W. Bush, wrote that anti-union advocates are “unable to provide any legal support for the remarkable assertion that entering into a valid labor agreement governing recognition of a labor union amounts to illegal labor bribery.” That all changed last year, however, when the United States Court of Appeals for the Eleventh Circuit embraced the anti-union advocates’ reading of federal anti-bribery law, at least in some cases. If the Supreme Court sides against neutrality agreements in this case, it could eliminate the single most potent vehicle many unions can utilize to organize new workplaces.

Clean Air

Environmental regulation is the epitome of interstate and even inter-country regulation. Pollution to the air, water, and soil of one state inevitably runs into others, and not always the way we’d expect it to. Because of wind patterns, there are some states whose pollution contributes more to poor air quality in other states. Addressing this issue, and aiming to prevent 34,000 premature deaths and 400,000 asthma attacks each year, the Environmental Protection Agency imposed a rule to require 28 “upwind” states to not only ensure that their own air quality complies with federal standards, but also to mitigate their contribution to pollution in other downwind states.

Even the conservative U.S. Court of Appeals for the D.C. Circuit has made clear that this sort of regulation is needed. In fact, the D.C. Circuit ruled in 2008 that old EPA rules did not sufficiently protect downwind states from pollution. But they have since swung the other way, in what has been dubbed a “Goldilocks Conunudrum.” Last year, the D.C. Circuit ruled that EPA’s newest solution regulates downwind pollution too much and doesn’t defer enough to states’ own proposals for solving the problem. This is the ruling the Supreme Court will review this time around.

Versions of these rules have been wending their way through the courtsfor decades, during which time pollution has been regulated under outdated, ineffective standards, even though the court and EPA agree that the Cross State Air Pollution plan would be more effective. A U.S. Supreme Court ruling upholding the latest D.C. Circuit opinion would send EPA back to the drawing board yet again, and “seriously impede the EPA’s ability to deal with a grave public health problem.” It would also conveniently continue to spare the most polluting businesses from compliance. But don’t be surprised if the court’s five conservative justices who sometimes espouse judicial restraint reach out to question the judgment of an agency in fulfilling its own mandate.

Human Rights v. Corporate Immunity

Last term, the U.S. Supreme Court struck a blow to both human rights and corporate accountability when it narrowed the scope of a 200-year-old statute intended to address egregious human rights violations abroad. Shortly after that ruling, the court announced it would take another case dealing with the same statute.

The plaintiffs in this case allege that car manufacturer DaimlerChrysler acted in cahoots with the Argentine military during the “dirty war” in arresting and detaining workers, some of whom disappeared. They are seeking to hold DaimlerChrysler accountable for this alleged life-threatening exploitation of workers through the Alien Tort Statute, which allows lawsuits by “aliens” — meaning non-U.S. parties. Even under this statute, however, parties have to meet general court rules about jurisdiction, meaning they must have some connection to the United States. Federal court decisions before last term’s Kiobel ruling allowed lawsuits that challenged torture abroad by two foreign actors to proceed in U.S. courts because the defendants had lived or were living in the United States. DaimlerChrysler has claimed that the plaintiffs do not have jurisdiction to sue them in the United States, because DaimlerChrysler is based in Germany and is suing over actions in Argentina. But the U.S. Court of Appeals for the Ninth Circuit ruled that DaimlerChrysler’s California subsidiary was sufficient to establish jurisdiction in California.

The ruling could clarify the scope of last term’s ruling, and whether many corporations with a major presence in the United States who profit from exploiting more permissive countries will be even better insulated from liability. Some commentators wonder whether the Supreme Court took this case to narrow the scope of U.S. Courts’ jurisdiction over corporations more generally, and not just under this one statute.

Whether Treaties Can Be Enforced

As President Obama struggles to enforce international norms forbidding the use of chemical weapons in Syria, the justices will turn their eyes to a much smaller violation of those norms. A vengeful spouse named Carol Anne Bond stole toxic chemicals from her employer and applied them to her husband’s mistress’ mailbox, car doors, and her house’s doorknob in an attempt to poison the mistress. This violated the federal law implementing the 1993 Chemical Weapons Convention, which makes it a crime to “receive, stockpile, retain, own, possess, use, or threaten to use” a chemical weapon.

Nearly a century ago, the Supreme Court held that, when the United States enters into a valid treaty, “there can be no dispute about the validity of the statute [implementing the treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” Bond now asks the Roberts Court to repudiate this holding, or at least to limit it enough to allow her to avoid prosecution for her use of the stolen poison under the statute implementing the chemical weapons treaty. If the justices take her up on this request, they could potentially curtail America’s ability to meet its treaty obligations to a significant degree.

If they do reach such a result, it would not be the first time the Roberts Court cut into our nation’s ability to meet our international obligations. In 2008 — in a case argued by future Sen. Ted Cruz (R-TX) — the Court held that Texas could ignore a treaty requiring foreign nationals arrested within the United States to be informed of their right “to request assistance from the consul of his own state.” Even North Korea honored this treaty in 2009 when it took two American journalists captive, although Texas did not.

Privacy And The Police

With new-technology questions swirling about the ability of the Fourth Amendment to protect against secret surveillance, a case next term will answer a more fundamental question about police power to search the home of a suspect. The home has always been particularly sacrosanct under the Fourth Amendment, but one of the ways police can get around the usual search warrant requirement is by getting consent to search a suspect’s home. Under current case law, if the police come to your door without a warrant and you’re not home, your roommate can give an officer consent to perform a search of the home on your behalf. But what if you have previously told the police that they are not authorized to search your home? Can they come back later when you’re not home and try again? In this case, police took advantage of that scenario. They came to the defendant Walter Fernandez’s apartment, and Fernandez said they had no right to search his home. Recognizing a tattoo on Fernandez as matching that of a burglary suspect, they arrested Fernandez. They visited the apartment an hour later — with a guarantee that Fernandez would no longer be there to decline the search — and Fernandez’s girlfriend gave her consent for police to search the home.

There are obvious reasons to worry about allowing others to waive your Fourth Amendment rights. But this concern is heightened where a suspect has explicitly rejected a search, and police are incentivized to arrest that suspect simply to gain access to that person’s home. With surveillance tactics threatening to collect even more from the Internet than police might find in someone’s home, questions about consent may also tell us how willing the justices will be to defend our privacy from government intrusion.

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Inequality for All: Coming To A Theatre Near You 

Today, opening in theaters across the country is a new documentary Inequality for All that explores the widening income gap in America. Narrated by former Secretary of Labor Robert Reich, the film profiles people from different walks of life – Costco employees, wealthy venture capitalists and middle class professionals – to demonstrate how our economy is set up to work for the wealthy few but not for all of us.

From Secretary Reich: “This movie is critically important. It exposes the heart of our continuing economic problem. The problem has been growing for over thirty years, but we’re coming to a tipping point. The problem is widening inequality. We’re still in the gravitational pull of the biggest economic slump since the Great Depression because so much of the nation’s income and wealth are going to the top. The vast middle class doesn’t have the purchasing power to get the economy back on track.”

Inequality today is as extreme as it was right before the Great Depression. The valley in between those two peaks of inequality, which shows up repeatedly on screen in Inequality For All, represents a time of broad prosperity from which the country can draw lessons. The Great Recession has not produced the same kind of policy shift Reich points to as a key to that prosperity, and inequality is only getting worse. Eroding investments in education and children undermine the future workforce, low union membership undermines present-day workers, and weak financial industry oversight allow the sector that drives inequality and creates economic crises to regain its footing while leaving the middle class behind.

To find theaters and times near you, click here.

Watch the trailer here.

Facts on Income Inequality:

• The top 5 percent made $191,157 or more in 2012, while the bottom fifth made $20,599 or less.
• The top 10 percent of earners took home half of the country’s income, the largest amount on record.
• The gap between the employment rate for the highest income Americans and the lowest income ones is the widest in a decade.
• Income for households in the top five percent of American earners have grown by more than five percent over the past three years.
• From 2009 to 2012, income for the 1 percent grew by 31.4 percent, while everyone else only saw it grow by 0.4 percent.
• Income inequality in the U.S. is worse here than in Egypt, Tunisia, Yemen, the Ivory Coast, Pakistan, and Ethiopia.
• Through the 2000s, the richest 20 percent of Americanssaw their incomes grow by $2,550, while the bottom 20 percent just saw $1,330 in growth.
• The top 10 percent now has 15.9 times the income of the bottom.

The progressive plan to grow the economy from the middle class out stands in marked contrast to the failed and even dangerous “trickle down” tax cut and draconian austerity spending plans championed by conservatives. Conservatives want to cut even more from education, medical research and infrastructure in order to give even more tax cuts to the rich and huge corporations in the hopes that it trickles down to the rest of us.

Instead of continuing the trickle down policies that created income inequality in the first place it is time to put policies in place that will create an economy that works for everyone.

Policies to grow the economy from the middle class out:

• Investments in growing the middle class: Investing in education, infrastructure, energy, and innovation boosts the economy today and helps create the job creators and strong middle class that will fuel economic growth tomorrow.
• Everyone paying their fair share: Tax cuts for the wealthy and huge corporations don’t grow the economy. If the wealthy aren’t paying their fair share, we simply cannot afford to make the investments in the middle we need to in order to grow the economy.
• Minimum wage: Nobody who works full time in America should have to live in poverty. Raising the minimum wage will lift people out of poverty and create more consumers to help fuel the economy.
• Health security: Millions of Americans will soon have access to quality, affordable health care for the first time and the 85 percent of Americans who already have health insurance are seeing new benefits and better coverage as a result of Obamacare.
• Retirement security: We need to strengthen both Social Security and our private retirement system so middle-class Americans can afford to retire and live with dignity, a promise beyond the reach of too many.
• Affordable housing: The housing market is recovering, but we need to implement additional policies and reforms to help those who are still underwater and the millions who can’t get a loan to buy a home today.

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