On workers’ rights, ideology overrules California voters

A famous lawyer once said, “Don’t tell me what the law says; tell me who the judge is.”  

Jeffrey Toobin, legal analyst for CNN, similarly observed about the Supreme Court, “what matters is not the quality of the arguments but the identity of the justices.” What governs decisions “is judicial philosophy — ideology.” 

Similarly, Richard A. Posner, the great conservative judge and law professor, wrote that constitutional cases “can be decided only on a basis of political judgment.”

On Sept. 11, 2020, the California legislature, governed by Democrats, passed AB-5, or the so-called gig act — which requires private independent contractors to become employees — with strong support from organized labor. Governor Gavin Newsom (D) signed the bill into law on Sept. 18. Proposition 22 later overturned this legislation. 

On Aug. 20, Alameda County Superior Court Judge Frank Roesch ruled Proposition 22 unconstitutional, arguing the law illegally “limits the power of a future legislature to define app-based drivers as workers subject to workers’ compensation” — a circular argument indeed.

Last November, voters in California voted by wide margin — 59 to 41 percent — in favor of Proposition 22, regarding so-called gig workers. Last week, one man alone rejected the democratic choice of California’s voters.

Here’s how Roesch’s unilateral ruling will work. Say you are a married man or woman with three kids. You would like to earn a little more money for your family. You choose to be a free and independent subcontractor taxi driver with, say, Uber. Under Roesch’s recent edict, you no longer have this freedom and choice. Instead, the judge has required that you become an employee of Uber, but ruled by the government. Your soul now belongs to the company store.

Moreover, under the ruling, the price of an Uber ride is expected to rise some 30 percent. So the ruling harms not only drivers, but riders as well. The new law will alter the agreeable contract between consenting, private parties — driver and rider, even though the U. S. Constitution mandates that there shall be no “law impairing the obligation of contracts.” 

Judges are political: They have, as Toobin and Posner observed, judicial philosophies. The U.S. Supreme Court is political too, with six conservative justices and three liberal ones.

Roesch’s philosophy puts him on the side of organized labor. He wants Uber drivers in a free country to be eligible for workers’ compensation, health care subsidies, and wage floors — in short, to be subject to a form of union control. It is projected that this edict will change the lives of 450,000 independent contractors in California.

The gig law as changed by Roesch will also govern and restrict the contracts of freelance writers, journalists, and photographers. They will be required to become employees, not independent contractors. They will be controlled by labor laws.

What Roesch’s ruling finally means is that politics triumphs, not the voters or “we the people.” The ruling affirmed the government’s power to control the people. A judge and government are saying, “We know better than the citizens of California.” In this case, the judge patently controls freedom and democracy.

Ronald L. Trowbridge, Ph.D., is a policy fellow at the Independent Institute in Oakland, Calif. He was appointed by President Reagan to the United States Information Agency and later served as chief of staff for U.S. Chief Justice Warren Burger.