The Supreme Court as an Agent of Policy Drift: The Case of the NLRA

Abstract

Scholars have made important advances in explaining policy drift, uncovering the prevalence of drift in veto-riddled systems, the importance of bureaucratic discretion and statutory ambiguity in combatting drift, and its feedback effects. Despite research demonstrating the potential for judicial action to alleviate drift, we know little about the potential for the Supreme Court to facilitate policy drift. I argue that the Supreme Court may operate as a powerful agent of drift by stripping statutes of ambiguity, foreclosing policy innovation in institutions outside of Congress, and curtailing bureaucratic discretion and authority. To demonstrate these mechanisms, I show how in the case of federal labor law, the Court’s jurisprudence addressing the right to strike, federal preemption, and National Labor Relations Board authority played a central role in gradually undoing the efficacy of The National Labor Relations Act. This inquiry has important implications for understanding public policy, judicial power, the development of American labor law, and American democracy.

The policy feedback effects of preemption

“…Michener (2022) demonstrates how the use of preemption can reshape both the capacity of tenant organizations and the strategic choices they make, and Williamson (2020) explores how preemption in the context of immigration can affect whether local policymakers pursue innovative solutions to welcome immigrant groups. Drawing on the case of labor law, Snead (2023) explores how judicial preemption can generate policy drift, foreclosing opportunities for lower-level jurisdictions to legislate in the absence of federal action.…”

“…With respect to the first, the preemption of state or local law can clearly change how policymakers consider the viability of particular solutions. For example, judicial preemptions of labor law have influenced the types of state policy remedies legislators are able to pursue to protect workers (Snead, 2023). The type of preemption may also introduce disparate learning effects, with floors potentially expanding the possibilities for innovation while ceilings limit what choices policymakers consider.…”

Litigating Policy Drift: Frozen Categories and Thresholds in Court

“…Conservatives might be fearful of drift caused by the failure to "delist" benefits once covered by public programs or the difficulty of excluding previously covered populations (Hacker 2004b). Snead's (2022) examination of labor law suggests that the Supreme Court became an "agent of drift" long before Republicans came to dominate judicial selection.…”

“…We know that policy drift is widespread but difficult to study because of its gradual nature and low visibility; it originates in veto-prone political systems and produces downstream consequences for group competition (Béland, Rocco, and Waddan 2016;Galvin and Hacker 2020;Hacker and Pierson 2014;Rocco and Thurston 2014). The Supreme Court acts as an agent of policy drift when it strips provisions of ambiguity, curtails bureaucratic discretion, and forecloses other venues of policy innovation (Snead 2022). But we still know little about the scope of policy drift, its legal implications, and how it fares in court.…”

The Effect of Judicial Decisions on Issue Salience and Legal Consciousness in Media Serving the LGBTQ+ Community

“…H ow judicial decisions influence society is a significant question in the study of politics (Keck and Strother 2016). Scholars examining this topic have taken a variety of approaches, including investigating the impact of decisions on school desegregation (Rosenberg 1991), legal empowerment (McCann 1994), public opinion (Franklin and Kosaki 1989), policy drift (Snead 2023), the agendas of political institutions (Rice 2020), interest group activism (Baird 2007), jurisprudential philosophies (TerBeek 2021), Twitter discourse (Clark et al 2018), and many others. Despite the voluminous attention devoted to this topic, findings have generally been mixed, with some research suggesting the ability of courts to influence social change (e.g., Hall 2011;Keck 2009), and other work finding little to no effect (e.g., Gould 2005;Silverstein 2007).…”