Justices appear likely to side with Starbucks in union organizing dispute

ARGUMENT ANALYSIS

The oral argument Tuesday in Starbucks Corp. v. McKinney was surprisingly one-sided, as the justices seem to have come to the bench settled on the view that the lower court’s ruling could not stand. The basic issue in the case is what the National Labor Relations Board has to prove to get a preliminary injunction against an employer (in this case, Starbucks) while it conducts administrative proceedings to determine if the employer committed an unfair labor practice.

It became pretty clear early in the argument that the justices were not satisfied with the NLRB-preferred standard, applied by the lower courts. Under that standard, all that the NLRB has to prove about the merits of its case is that it has a legal theory that is “not frivolous” and “some evidence to support it.” That is much more lenient than the four-factor standard courts use for non-labor injunctions, which would require the NLRB to establish a “likelihood of success” on the merits (in addition to consideration of irreparable injury, the balance of equities, and the public interest). Early in Lisa Blatt’s argument for Starbucks, Justice Sonia Sotomayor commented, “I do understand why that needs to be corrected because you’re right, it’s the court that has to decide the likelihood of [success] on the merits.” Nor was she alone; with the lone exception of Justice Ketanji Brown Jackson, not a justice said a word to support the NLRB’s standard on that part of the case.

Indeed, under intense questioning Austin Raynor (counsel for the NLRB) declined to defend the standard accepted by the lower courts. By the end of the argument, the only difference between his position and Blatt’s was the extent to which courts should weigh the NLRB’s decision to press the matter as evidence that the NLRB ultimately would rule against Starbucks. And even on that much narrower ground he made scant headway, as the justices seemed to think it clear that a court, when asked to issue an injunction, would (and should) follow its own views as to the correct legal standard. As Justice Elena Kagan put it, “It’s got to be the court’s view of the law, right?”

In the same vein, when Raynor continued to push for judicial deference to the NLRB’s views, Justice Neil Gorsuch quipped: “What’s wrong with the best judgment a neutral magistrate can issue?”

Much of the argument was devoted, it seemed, to crafting the exact language of an opinion that would correct the decision to issue an injunction. Most pointedly, at the end of the argument, when Raynor had conceded that so much of the lower court’s decision was indefensible, Kagan pressed him to define precisely what remained in dispute. At that point, referring to the second, third, and fourth factors of Blatt’s proposed test (in addition to the likelihood of success on the merits), she commented that “I don’t think that Ms. Blatt retreated at all from [the position in her] brief today. So I take it that that’s pretty much not at issue now.” Pressed, Raynor agreed with Kagan that he would accept Blatt’s position on the latter three factors. So by the end of the argument, he had conceded to Blatt’s view on three of the four factors and conceded that the lower-court standard on the fourth factor was unjustifiably lax.

This was a surprising argument. Not just because it looks like Starbucks will win. But because it was so clear from so early in the argument that the NLRB had vanishingly thin support. It is rare indeed to see the government decide to defend a decision in the briefing but essentially give up and concede defeat in the face of questioning at the oral argument.

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