0:00:02.1 S?: We'll hear argument now in number 001089, Toyota Motor Manufacturing v. Ella Williams.

0:00:13.5 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael discuss Toyota Motor Manufacturing v. Williams, a 2001 case about the Americans With Disabilities Act. The plaintiff in the case, Ella Williams, was fired by Toyota, which cited poor attendance. Williams sued, claiming the Toyota had failed to accommodate her disability, carpal tunnel, and that it had been exacerbated by her work on the assembly line.

0:00:38.7 S?: The Justices said this Kentucky Toyota plant did not have to find another job for an employee who suffered from carpal tunnel syndrome and could no longer work on the assembly line. The decision found that Ella Williams' partial disability did not substantially limit her major life activities.

0:00:55.5 Leon: In a unanimous opinion, the Court sent the case back down to the lower court, which eventually ruled against Williams.

0:01:01.8 S?: We're in this bizarre twilight zone where we're too disabled apparently to work, but yet we're not disabled enough to be covered under the law.

0:01:12.0 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:23.4 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ground our liberties to the bone, like the cartilage in a veteran NBA player's knees. I am Peter, I'm here with Michael.

0:01:35.5 Michael: Hey, everybody.

0:01:39.2 Peter: And Rhiannon.

0:01:39.3 Rhiannon: Hello.

0:01:39.5 Peter: How's everyone doing today?

0:01:40.9 Rhiannon: Chillin', bro.

0:01:42.7 Michael: Doing well.

0:01:44.1 Peter: Today's case is Toyota v. Williams. This is a case from 2002 about the Americans With Disabilities Act, which among other things, protects people with disabilities in their workplace, and what this case involves is the question of what exactly it means to be disabled. So if you're a thoughtful person, you might realize that that's not a very easy question to answer, and to avoid bringing anyone else to do this, I will use myself as our initial example. I've got mild scoliosis, it has resulted in some pain, some injuries, and it means I cannot safely do certain heavy lifting, but if you observed my day-to-day life, you would probably never know there was an issue. In fact, I saw a chiropractor, who didn't even mention it, once when I was young.

0:02:34.2 Michael: Shocked, shocked that a chiropractor would miss that.

0:02:38.5 Peter: Might have noticed a misalignment of the spine, but no, he just rolled with it. It was just like, this guy is fine. I'm just just gonna keep yanking...

0:02:46.4 Rhiannon: I'm just gonna crack him up.

0:02:48.2 Peter: I also have what at least one doctor has described as a fairly severe case of ADHD...

0:02:53.7 Rhiannon: No, you're joking.

0:02:57.9 Peter: Obviously, you guys are shocked, but this is a real thing.

0:03:01.0 Michael: You guys don't hear what these recording sessions are like, but it's... If you heard the uncut tape, you would not be shocked.

0:03:07.5 Peter: Alright, everybody settle down. So this has... It impacted my school work growing up, it impacts my focus at work now, so am I disabled? I'm less able to accomplish certain things than your average person might be. Like I said, it affects my work. But I think a lot of people would be hesitant to categorize me as disabled, while they might be very ready to label someone who is paralyzed below the waist as disabled, even if that person was a white collar professional who otherwise had a similar day-to-day experience.

0:03:44.2 Peter: The point being, everyone is beset with a different set of physical and cognitive limitations, and the scope of those limitations is colored by the intersection of medicine and technology and socio-cultural factors, and so today's case poses a simple question: What if instead of having experts and people with lived experience grapple with the question of what constitutes a disability by confronting all of these complexities, we just had some lawyers hash it out?

0:04:13.2 Michael: That's right.

0:04:13.5 Rhiannon: No risk. It'll turn out great.

0:04:18.9 Leon: So Rhiannon, walk us through some background here, let's go.

0:04:24.3 Rhiannon: Sure. So I think it would help to talk about the ADA, the Americans With Disabilities Act, a little bit upfront. So just a couple of things about the ADA. The primary purpose of this legislation was to create more employment opportunities for people with disabilities. Numerous studies throughout basically the '80s and into the late '80s showed that of all minority groups, disabled people in the United States were the most economically disadvantaged. In 1988, for example, two-thirds of working age people with disabilities were not working, and the number of under-employed people with disabilities was even higher.

0:05:05.3 Rhiannon: But studies also showed that there weren't concrete business reasons for why this was happening. The vast majority of individuals with disabilities who were studied said they wanted to work in full-time positions, and that when they did have full-time jobs, they maintained above-average work attendance and productivity. So of course, we want to point out that a person's value and contribution in society shouldn't ever be tied to these vague measures of workplace productivity, but this is the information that Congress was looking at in the late '80s, early '90s, when they drew the conclusion that disabled people were being discriminated against in the workforce. Public and private sector employers couldn't use the excuse that there was a loss in productivity by employing people with disabilities, for instance.

0:05:52.9 Rhiannon: The reality was that this was about discrimination against people with disabilities, and that discrimination was leading to serious economic harm to people with disabilities. The organization today known as the National Council on Disability noted that in 1988, 20% of people with disabilities in the US lived in poverty. Justin Dart, who was a disability rights advocate and co-founder of the American Association of People With Disabilities, he testified in front of Congress when they were passing the ADA. He testified that discrimination against people with disabilities was "driving us inevitably towards an economic and moral disaster of giant paternalistic welfare bureaucracies. We are already paying unaffordable and rapidly escalating billions in public and private funds to maintain ever-increasing millions of potentially productive Americans in unjust unwanted dependency."

0:06:50.5 Rhiannon: And so again, when passing the ADA, Congress looked at hard data and created comprehensive legislation to primarily increase economic opportunities for people with disabilities and to protect them from discrimination that was not only extremely harmful, but commonplace across the workforce. So let's turn to the facts of this case. This is the story of a woman named Ella Williams. Williams got a job at the Toyota Motor Company in the early '90s, and she moved her family, in fact, across the state to take the job as an assembly line worker at Toyota's plant in Georgetown, Kentucky.

0:07:27.1 Rhiannon: You know, at the time, the average annual pay for assembly line workers for Toyota was $62,000. This is decent money for most families at the time, this is a solid opportunity for Williams and her family, but she would end up working for Toyota for just six years because over the course of her time there, she developed carpal tunnel syndrome and tendinitis in her upper body. And if you don't know, carpal tunnel syndrome is characterized by numbness and pain in your wrists and hands as a result of compressed nerve in the wrist, and tendinitis is irritation and inflammation of the tendons, and this condition causes severe pain and tenderness, especially around joints.

0:08:08.5 Rhiannon: But in describing her experience with these medical conditions, Ella Williams said, "I got lumps the size of a hen's egg in my wrists and my hands and fingers got curled up like animal claws." She also said, "I used pneumatic tools at work that really vibrated and I was always having to reach above my head."

0:08:26.7 Peter: I love the Kentucky charm of the hen's egg visual.

0:08:31.8 Rhiannon: As a result, Toyota took her off the assembly line and they gave her a job as a paint inspector, where she worked satisfactorily, according to job reviews, for a little while, but then in 1996, the job duties changed and Williams was required to take on more physical tasks again. And again, these job activities caused her significant pain in her upper body, especially her shoulders, her arms and her hands. This was more than mere discomfort on the job for Williams. As a result of the progressive nature of these conditions, she eventually needed help getting dressed, she stopped being able to drive long distances with her family, she had to limit her participation in recreational activities that she previously had enjoyed, like gardening and dancing, and really importantly, just in terms of her quality of life, she said that the worsening pain and immobility she experienced limited the time that she was able to spend playing with her kids and doing activities with them that required her to do physical movement.

0:09:32.2 Rhiannon: She repeatedly asked for accommodations at work so that she could keep her job with Toyota, but after missing work numerous times, Toyota eventually fired her. So Ella Williams sued under the ADA, arguing that she was discriminated against as a result of her disability and she wasn't given accommodations that she was owed under the law.

0:09:52.2 Michael: That's right. And before we get into it, I want to note that there's like a whole constellation of issues here, and there was a bunch of litigation, there was potential workers compensation claims, there were claims under their Family Medical Leave Act, under Kentucky's state workers comp laws, those things all exist. We're not looking at them today, a lot of them weren't implicated in this litigation at all, in this particular case, what we're interested in here is specifically her request for accommodation because she wanted to keep her job under the ADA and how that shook out and how the Court interpreted it.

0:10:30.2 Peter: Maybe before we get into the law, we should talk about who the lawyer for Toyota was.

0:10:37.7 Michael: Oh, that's right.

0:10:37.7 Rhiannon: I want to give listeners three seconds to guess. Okay, this is the early '90s...

0:10:43.7 Peter: No, it's like 2001, by the time it's actually in the Supreme Court.

0:10:47.7 Rhiannon: That's right, that's right.

0:10:49.5 Michael: It's a pod favorite, folks.

0:10:50.2 Rhiannon: Who would be representing Toyota in front of the Supreme Court...

0:10:57.5 Peter: If you guessed Chief Justice John Roberts...

0:11:01.2 Michael: That's right.

0:11:03.1 Rhiannon: Gold star for you.

0:11:04.8 Peter: John Roberts, crazy coincidence working for the large corporation here.

0:11:10.3 Rhiannon: Against people's workplace protections and accommodations.

0:11:14.6 Peter: Yeah, just a fun little fact to keep in mind. He ran around the room high-fiving all the Justices before his argument. Alright, so like Rhi said, the Americans With Disabilities Act, a law passed that prevents discrimination against disabled people in the workplace, and part of that is a requirement that employers must accommodate employees with disabilities. Now, that doesn't mean that they have to keep you employed if you have a condition that prevents you from doing the job altogether, but it does mean they have to accommodate you by taking reasonable steps to provide you with an environment where you can perform the work, if that's possible.

0:11:51.5 Peter: So for example, if your job is that you paint tiny little photo-realistic paintings with immense precision and then someone chops off your hands, your employer, which is the tiny painting shop, they don't have to keep you employed, because you can no longer do the job at all, but if you just hurt your fingers such that you paint a little more slowly, but at the end of the day, you can still paint the tiny paintings with photo-realistic imagery, then they would have to accommodate you under the Americans With Disabilities Act, they would have to sort of say, okay, let's figure out how we can make this work.

0:12:30.9 Peter: Simple enough. So, Ella Williams has carpal tunnel syndrome, and she claims that Toyota failed to accommodate her and otherwise discriminated against her when they fired her because of her disability. But what Toyota claims in response is that under the Americans With Disabilities Act, she's actually not disabled, so Toyota can't be liable. And the Court, in a unanimous opinion, authored by Sandra Day O'Connor, agrees with Toyota. They say, yeah, she hasn't shown that she's actually disabled here.

0:13:04.0 Peter: So let's dig in a bit. What the law says is that to qualify as a disability, something has to "substantially limit a major life activity." the law gives examples of major life activities, walking, seeing, hearing, learning, working. This lady has carpal tunnel syndrome, quite severe, if you believe her account, right? So she struggles to perform tasks with her hands. The job involved, among other things, applying certain oils to cars on an assembly line that required her to hold her hands and arms up around shoulder height, she claimed, for several hours at a time. So she's got carpal tunnel, she's got a job where they're requiring her to extensively use her arms and hands. It seems simple, right?

0:13:55.6 Rhiannon: Right. Just a clear path here.

0:13:57.8 Michael: This is the defective lawyer brain, and this is how law school breaks your brain.

0:14:02.2 Peter: Like, how do you get this circumstance, nine elite lawyers agreeing with Toyota. So again, the question is, does this substantially limit a major life activity? And Sandra Day O'Connor kicks off the analysis by saying that "substantially" is defined as considerable or to a large degree. Thank you, Sandra. Then she says that "major" is defined as important.

0:14:33.3 Rhiannon: She pulled out the dictionary, folks, she's on it. She took her Adderall that morning and she said, baby, gimme Webster's.

0:14:43.4 Peter: So again, just knocking it out of the park so far, nothing but net. Thank God she defined substantially as considerable.

0:14:52.3 Michael: That is one you really need the dictionary for.

0:14:55.2 Peter: Otherwise I would have no idea what it meant. She first notes that "It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis." Instead, what she's saying is that instead they have to submit evidence of their experience with a disability. So right off the bat, we are sort of rejecting medical expertise here and going straight to what can only be described as sort of a vibes check. Do you feel disabled? Are you feeling disabled?

0:15:37.3 Michael: Get those x-rays out of my face.

0:15:40.9 Peter: I have to say, this feels like an area where perhaps we should have some doctors weighing in, maybe someone with specific expertise in disabilities of some kind. Anyone besides a lawyer would be great.

0:15:55.3 Michael: Yeah, absolutely. And a good example of the idiocy of her particular lawyer brain, although I guess everyone signed off on this opinion, so I shouldn't let them off the hook either. She says, look, when Congress enacted the ADA in 1990, they said that some 43 million Americans have one or more physical or mental disabilities. I was like, that's a lot. She follows that with, if Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant or particularly difficult manual task to qualify as disabled, the number of disabled Americans would have surely been much higher, which I... Really? I looked it up, there were 250 million Americans in 1990, which makes that almost 1 out of 5 Americans. That's a lot, that's like most workplaces would have multiple people with disabilities under the ADA.

0:16:53.5 Michael: And she's like shrugging it off like, oh, it's not that much. It's not everybody. It's not the entire workforce.

0:17:01.3 Peter: Yeah, the rest of her argument in this case borders in my view on being incoherent. She says the question isn't whether this woman is unable to do this job, what matters is whether she can do any job, and so even though she cannot do this one because of the carpal tunnel, she might not count as disabled because she can do other jobs. And Sandra just goes on for a couple of paragraphs, essentially downplaying this woman's disability, noting that she can carry out most day-to-day tasks that people do.

0:17:32.4 Michael: Right, right. She says that the lower court that they're reversing ignored important evidence, like the fact that she could tend to her personal hygiene and carry out household chores like bathing and brushing one's teeth. It feels like satire. It's like, oh, you say you can't lift heavy objects or do repetitive manual tasks without pain, yet you can brush your teeth every morning. I got you right.

0:18:02.7 Peter: Right. My friend Dave's been telling me his whole life that he needs that wheelchair, but I see him brushing his teeth every single day. What's going on with this guy?

0:18:10.1 Rhiannon: It doesn't make sense.

0:18:11.3 Michael: It's this insane way of looking at it, like we have to remove all context from your life and decide from this behind a veil of ignorance whether you are "disabled" and then plug you back into your life and go from there.

0:18:27.9 Rhiannon: Right. And I just want to add that John Roberts, the current Chief Justice of the Supreme Court, when he was arguing this in front of the Supreme Court in the early 2000s on behalf of Toyota, Sandra Day O'Connor's language is almost straight lifted from John Roberts' oral argument. He was the one who said on the record that Ella Williams can walk, she can brush her teeth, she can bathe, and so she's not really disabled. And the other thing I want to say is how much this kind of language and this kind of talking about what it means to be disabled or not disabled or to have a disability, how much it's steeped in stigma and stereotype, exactly the kind that the ADA was targeted at eliminating, right, and the Supreme Court here, Sandra Day O'Connor's opinion, is really just reproducing that incredibly stigmatizing language about what it means to be disabled and putting that in the holding.

0:19:23.7 Michael: Right, and the final point I want to make is that she also was like, look, yes, sure, dressing yourself, that's sort of like in those categories, but she only needed help dressing herself sometimes.

0:19:33.5 Rhiannon: Right, which is wild.

0:19:35.7 Michael: So that's not really disabled on the record here.

0:19:35.8 Peter:

0:19:38.3 Leon: Right. I want to point out, there's a degree to which this sort of dichotomy where you're saying these people have to be so severely disabled for the ADA to protect them that they can't even brush their teeth, it really undermines the whole function of the law with respect accommodations at work. Accommodation is meant for people who are not severely disabled, obviously, because the whole point is that you can do most of the job, you can do the basics of the job, so they're creating a situation where someone has to be severely disabled for the ADA to apply, but not so disabled that they can't do the job, and it's not true that that Venn diagram has any overlap, it erases the function of the law.

0:20:21.3 Peter: And that's the whole point of this part of the ADA, that employers must accommodate people whose disability impacts their ability to do their specific job. So when you say that their ability to perform that specific job is irrelevant, you have completely divorced the application of the statute from its meaning. This woman is saying, hey, my disability prevents me from doing this job, so they should accommodate me and maybe not fire me, right. And the Court is saying, well, yeah, but you could do other jobs, and it's like, well, yes, but this law is about workplace accommodations for people with disabilities. What's the point of that if they don't have to accommodate you based on your specific workplace?

0:20:58.0 Rhiannon: Exactly, exactly. It's so stupid.

0:21:01.2 Michael: It's remarkable.

0:21:04.3 Peter: What O'Connor is reading the ADA as doing is dividing people cleanly into two categories, disabled and not disabled. But like I mentioned up top, the reason I got into my scoliosis and ADHD is because the reality of what it means to be disabled is not very clear. There's a wide range of ways in which a person's physical and cognitive function might be limited relative to their peers, and it doesn't do any good to try to draw a bright line between disabled and not disabled. Put another way, O'Connor is asking the question, is she disabled? But that's the wrong question. The question is, does this woman's condition impact her ability to do this job.

0:21:47.5 Michael: That's right.

0:21:49.3 Peter: Before we move on a bit, I think we should note that the Court does not hold that she is not disabled, they just send the issue down to the lower court to re-evaluate whether or not she is based on this sort of new framework, this bright line that they have created. But I think the way that O'Connor has framed this question completely shifts the way that all future courts have to analyze it, using this childish binary, disabled not disabled categorization, where disabled people are people who are so debilitated that they can barely participate in society, in the workplace and take care of themselves and non-disabled people are everyone else, just removing any sort of gray area in the analysis of what being disabled actually means.

0:22:33.0 Michael: Right. And I also want to note, she mentions in sending it back to the lower court, that part of that's the posture that it came up in, and that they weren't in position to do that, but I think it was pretty clear how the Court wants the lower court to find here, right. They want it to say she's not disabled. That comes through loud and clear in this.

0:22:56.8 Peter: Right, and so the dissent here... Oh, my bad. No dissent here. Marking, I believe, is this our first unanimous case? I think it might be.

0:23:09.6 Michael: I think so.

0:23:11.5 Peter: Which is just remarkable. I was telling you guys that I was, I think, mixing this up with another employment discrimination case, and I thought the whole time I was prepping this, I was like, it's a 5-4 decision, and the discovery that not a single Justice... Not a single Justice found this offensive, I can't even fucking tell you how poisoned the minds of lawyers across the world are.

0:23:32.0 Rhiannon: It's beyond ridiculous.

0:23:33.8 Michael: Yeah, and before we continue, let's take a break.

0:23:39.8 Michael: Alright, we're back, and I wanted to talk a little bit about my personal experience with the ADA, because I think I've mentioned this on Twitter before, but if you don't know, I have a bipolar diagnosis and have struggled a few times with some severe bipolar depression. And when I was at a big law firm, I had to take time off under the ADA in a period of acute, acute depression, and I'm not sure that there's a better accommodation than what they offered me, which was literally unpaid leave as long as I wanted it with the promise that my job would be back with no reputational or ill effects when I was able to work again.

0:24:21.9 Michael: And I am blessed to have a comfortable enough life and enough built-up wealth and a wealthy enough family that I could take four months off without making money, and that was okay, and I could afford to go to a therapist two or three times a week and try a bunch of different meds, like off-label uses that insurance doesn't cover to try to take care of that. But most people aren't like that blessed and that accommodation isn't really available to them the way it was to me. And as far as accommodations go, it's not really much of one, right?

0:25:07.3 Rhiannon: Yeah, good point.

0:25:08.9 Michael: Like we'll essentially hire you back at some point. And I've always thought about it because I think it's sort of emblematic of the way our culture views people and their worth. Like this is all an outcropping of the idea that our ability to keep a roof over head or feed ourselves should be tied to our ability to be productive and be socially useful members of the country. And if we can't...

0:25:40.3 Rhiannon: Economically useful.

0:25:42.3 Michael: Right, economically... Yeah, not even socially useful. Economically useful member of society. And so in this case, I wasn't able to do that at all, and so I wasn't gonna make any money. And the ADA, all it's doing is smoothing out the edges on that. Well, that's too heartless in the case of someone who gets a debilitating injury, but otherwise wants to work and can do some work, we should let them work. Where is the inherent dignity that we treat people? And to take this law that's already sort of... I think its very existence highlights like the inadequacy of the way we treat our people in general, let alone people who are struggling with disabilities, and then gut it like this and make it less useful and less helpful, and just make our country that much crueler and colder. I don't know, reading this case, I was just like, I was just disgusted.

0:26:40.0 Michael: The fact that it was 9-0, that it was unanimous too, is just incredibly heartless, it's one of the more heartless decisions we've read, in my opinion.

0:26:50.7 Leon: I think I've talked about this on the show before, but there's a degree to which capitalism relies on the conflation of economic outcomes and moral outcomes, like there's this idea in American culture especially, that people do well because they deserve it, and if they don't do well, they deserve that too. And the conclusion that you're meant to draw is that whether someone is deserving of a decent life, of human dignity, is tied to their ability to perform in a workplace, such that even our analysis of people with severe physical limitations is not, how can we make life better for this person, it's sort of how can we fit this broken cog into our money-making machine. That's the framework that the Court is using here, and our baseline assumption remains that people who cannot perform work simply don't deserve to have their needs met. There's no other conclusion you could draw from the society that we've built.

0:27:47.4 Michael: Well, not our perception, to be clear, not our podcast's.

0:27:52.7 Peter: I mean as a capitalist society, alright, I mean, God, you guys aren't letting me wheel free here.

0:27:57.5 Michael: Well, I just want to be clear. I don't want to get cancelled as you were loose with your language.

0:28:04.8 Peter: And if we want to be like a moral society, our rejection of that notion needs to go beyond this lady should be given an accommodation by Toyota, which is of course true, it should go to the very fundamental proposition, right, if someone is even just unskilled or unintelligent through no particular fault of their own, or even through fault of their own, can you really and sincerely make the claim that you deserve a better life than them, that you deserve to be treated with more dignity than them. And capitalist structures want you to say yes, that they deserve less than you do, but I think if you have any semblance of a moral center, you have to say no to that. That is what I think it really sticks out to me about this case. It feels like something that could only be produced in a society as sort of completely hollow as ours.

0:28:55.5 Rhiannon: Yeah, I think that's exactly right, and really well said, Peter, and that brings me back to sort of the judicial principles, the legal principles that are animating this decision. One big thing I'm thinking a lot about is conservative, supposed judicial restraint. We talked about this as a foundational philosophy that supposedly was central to Justice Antonin Scalia's jurisprudence, and I think there's some hypocrisy to draw out in this case too.

0:29:23.8 Rhiannon: So here, what the Court is limiting is congressional action that was aimed at remedying inequity in our society. The Americans With Disabilities Act was intended to establish or really is born out of the foundational idea that people with disabilities are qualified to work, and that stereotypes indicating otherwise are harmful, they're harmful to people who were being forced to live in poverty because job opportunities were so slim, it was harmful to the economy at large, sort of every level of society, and the ADA was about protecting people from bias and stereotype that unjustly limit their economic self-sufficiency. And of course, that in turn limits personal autonomy, freedom, long-term health and wellness outcomes all the way down the line.

0:30:14.7 Rhiannon: And I think it's important to know a little bit more about the background of the ADA and what Congress specifically intended to remedy when they passed the ADA. So the ADA was built off of an earlier, smaller piece of legislation that was passed in the 1970s called the Rehabilitation Act, and that law prohibited discrimination on the basis of disability in federal agencies and programs that got federal funding. In 1990, when the ADA was passed, Congress recognized some limitations of the Rehabilitation Act that it sought to change.

0:30:46.8 Rhiannon: First, the Rehabilitation Act only applied to federally funded agencies and organizations, so the private sector was completely left out; and then secondly, a major problem with the Rehabilitation Act was that it left out definitive interpretation guidelines, which ended up leading to kind of erratic judicial interpretations. That means that reasonable accommodations and discrimination standards, those were never fully developed into agreed-upon legal tests that courts could use when reviewing workers' claims of discrimination on the basis of disability.

0:31:22.5 Rhiannon: So the ADA specifically sought to fix those two issues. The ADA was known as an example of a so-called second generation Civil Rights legislation, and the hubris of the Court here in limiting the ADA like this is really infuriating, like none of the conservatives would say that this case is an example of judicial activism, but it literally is, it's the definition of judicial activism, and conservatives will deride and spit on supposed judicial activism all day, but what they really mean to ridicule is when courts view expansive Civil Rights legislation expensively and when they're protecting people's rights under the law, the way the law is currently written.

0:32:06.8 Rhiannon: And when judicial activism like this is done in service of relegating people to permanent under-class status in our society, when it's done in service of damaging stigma and stereotype, when it's done in service of economic violence, that's totally fine with them, and they won't call it judicial activism.

0:32:27.3 Michael: That's right.

0:32:27.9 Peter: Before we wrap up, there's something I want to talk about, which is the ways in which the inadequacy of the state fosters adversarial relationships between workers and employers. Ella Williams has a condition that makes it difficult for her to do certain manual labor. There are countless others whose ability to engage with the job market is limited by their physical or cognitive capacity. So what are the options being presented to those people? Because you could imagine a robust welfare state that actually provides for people, that gives them the support they need to spend time searching for work they can do, or work part-time, or if you could even imagine it, not work at all, if that's what's best for them.

0:33:09.2 Peter: You can envision a government that provides safety to citizens who find themselves in these precarious and vulnerable positions, and that's why these sort of anti-discrimination laws, while useful, are always going to be inadequate. The reality of working is that the relationship between employer and employee is inherently adversarial, but a government that provides for its citizens more meaningfully, such that they are less reliant on work to exist day-to-day, can lower the stakes of that adversarial relationship, can take some steam out of that relationship.

0:33:42.9 Peter: These sorts of patchwork anti-discrimination laws don't do that. All they do is sort of change the rules of engagement. At the end of the day, you're still being forced to pry concessions from your employer in order to maintain your life and maintain your dignity, and that's why I think the only real broad reaching solution to problems like this is a strong organized labor movement. In Denmark, for example, and I think really across Northern Europe, where the regimes are often viewed as being relatively favorable to workers, there are no minimum wage laws, and yet wages there are far higher than they are here. Why, because union participation in most of those countries is well above 75%. When labor is in an equal bargaining position, workers don't need to be given rights because they will take them for themselves.

0:34:36.4 Peter: I support the Americans With Disabilities Act and I support similar anti-discrimination laws, but always remember that these are Band-Aids on the gunshot wounds inflicted upon American labor by corporate interests. No matter how well-meaning these laws are, under the current framework, you will always be at the mercy of some corporation that can appeal to some dues-paying country club member judges, like the fucking Supreme Court, to determine the scope of your rights. And that's because at the end of the day, that's where the power lies. The only way to change that fundamental dynamic is to change who has the power, and that's why no matter what the laws are, you're going to end up with bullshit like this. The way you change the way that workers interact with their employers is by giving them more power.

0:35:20.6 Michael: As an addendum to that, the more robust sort of social services and benefits you have, the easier it is for workers in a position of power to bargain. Like if you're not bargaining for healthcare because there's a robust government-provided healthcare system that let you focus on things like vacation, paid leave time, maximum hours and wages, right, and it doesn't have to be a trade-off between those things where you're trading off benefits for personal leave. So there's a real entire restructuring of our political economy that needs to be considered or needs to be done, really, if we want to have anything approaching a fair and just society.

0:36:10.0 Rhiannon: Just to vibe a little bit more, I've been thinking since we talked with Alec Karakatsanis about San Antonio v. Rodriguez, when he was talking about sort of imagining the Supreme Court deciding differently and deciding that our society did protect the poor from discrimination. For instance, when I found out when I learned that John Roberts argued this case to the Supreme Court and that now John Roberts, who represented the Toyota Corporation in front of the Supreme Court, now heads the Supreme Court as Chief Justice, I just thought about the possibility of imagining a world in which one of the Supreme Court Justices had spent a career as an assembly line worker at an auto shop, right, and how different these decisions would be, should people with real life experience and real work experience be making those decisions.

0:37:03.6 Michael: See, the limits of my lawyer brain were when you started that sentence, I was going to be like, yeah, what if Ella Williams' lawyer was... You were like, no, what if fucking Ella Williams was on the Supreme Court. Idiot. Like, what if we took these dumb-ass lawyers out of the equation altogether. I think that's a beautiful example of the way the law can be tunnel vision and unable to even think about things from a different perspective.

0:37:33.2 Rhiannon: And it's just because of this bullshit pipeline, right, it's the same people involved in the decision-making and making the decisions on these cases, they self-select into this tiny group of supposed elites, and that's it, they make the decisions for all of us.

0:37:47.6 Michael: Right. And is there anything more emblematic than the fact that the guy arguing this ended up being a Justice, right? It's a small club. It's a chummy, small club.

0:37:55.4 Rhiannon: Right, and now he leads the Supreme Court in deciding questions about the Americans With Disabilities Act, right, so how do you think those are going to come on?

0:38:02.9 Peter: I realize people will say, well, we can't have an assembly line worker on the Supreme Court, which I think I disagree with, but look, we'll start small, podcasters. We will work our way to the assembly line...

0:38:15.3 Michael: I've waited tables, and I have worked in a warehouse. Very briefly, but I did. I worked on a drill press.

0:38:21.4 Peter: A good chunk of my childhood jobs were warehouse jobs, by far the jobs I was the best at, by the way. I've never been better at a job than when it was just like, can you put this shit over there? I'm like, you got it, buddy.

0:38:33.0 Rhiannon: My ADD is raging and all I want to do is put shit over there.

0:38:38.8 Peter: I can do this job, yeah, yeah.

0:38:42.3 Peter: Alright, big thank you to Erin Hawley who helped us prep this episode, she's an accessibility consultant, @GeekyGimp on Twitter. Erin, thanks very much.

0:38:51.8 Michael: Thank you, Erin.

0:38:53.1 Rhiannon: Thanks, Erin.

0:38:55.6 Peter: Next week, we're doing a Patreon-only, subscriber-only episode on the Trump Judges. Gonna do sort of a post-mortem on the damage done by Trump to the judiciary, look at some of the worst of the worst and what we're looking at in terms of just the next 40 to 50 years of all of our lives.

0:39:16.5 Rhiannon: Can't wait.

0:39:16.6 Peter: Follow us on Twitter @fivefourpod, support us at patreon.com/fivefourpod, all spelled out, and we will see you next week.

0:39:25.4 Michael: Bye.

0:39:25.7 Rhiannon: Bye.

0:39:29.4 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.