Toward a More Perfect Union

By PETER H. SCHUCK

Review of Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism, by Reuel Schiller

Cambridge: Cambridge University Press, 2015

Today, particularly after the 2016 elections, we are accustomed to seeing a sharp political division between black groups and white working-class voters. According to exit polls, 43% of those in union households voted for Donald Trump nationally; in Ohio, Trump won the union vote by 9%. Many unionists and other white working class Americans now seem committed to conservative Republican candidates. How firm this commitment is, of course, remains to be seen.

In his admirable book Forging Rivals, law professor Reuel Schiller reminds us that it was not always thus. The alliance of civil rights groups and labor unions helped to sustain New Deal liberalism in the postwar years and to anchor the Democratic Party that institutionalized that public philosophy. This liberalism flourished in Lyndon Johnson’s Great Society and continued (in more compromised forms) in Richard Nixon’s first term. It championed a federal government that regulated many areas of the domestic economy, increased taxes and public spending, created welfare entitlements for the elderly and the poor, expanded civil rights protections of minorities, and actively pursued a pro-American global order.

The author shows just how this civil rights-labor alliance eroded in the 1960s and then shattered in the late 1970s, ushering in the era of “Reagan Democrats” and more conservative domestic policies. The story of this erosion is large, compelling, and complex. Many liberal historians have told it in their own ways, recounting how the precious New Deal legacy was lost, or in some versions, betrayed. Arthur Schlesinger, Jr., the most celebrated and widely read of these liberal apologists, was followed more recently by Ira Katznelson, who complicates the story by emphasizing the New Deal’s illiberal aspects.

Schiller’s own account is distinctive and ambitious in using a single city, San Francisco, to exemplify his claim about the nation as a whole. The claim, which echoes that of many declinist commentators on the left, is that the alliance’s evolution illustrates (as his subtitle puts it) “the collapse of postwar liberalism.” (I shall have more to say about this claim at the end of this review.) In a painstaking analysis of primary materials, he exploits a variety of materials -- correspondence, diaries, newspaper commentary, legislative history, minutes of hearings, lawsuits, labor grievance arbitrations, local biographies, and interviews with survivors who participated in the deteriorating relationship between civil rights and union forces – to make his case. This microscopic detail serves him and his readers well, rendering his factual account both coherent and credible.

Schiller organizes his story around five meticulously-researched events enriched by the richly-evoked personalities at their center. In the first, a California Supreme Court decision (James v. Marinship, decided in 1944) limited unions’ ability to exclude African Americans from membership. The ruling launched an alliance between civil rights groups in the Bay Area and the CIO, breaking the segregated AFL’s hold on skilled industrial jobs on the West Coast. But the ruling had troubling implications for unions and racial minorities alike. The courts could now limit unions’ self-governance even on issues having nothing to do with race – a precept that confirmed their longstanding, historically-justified antipathy to judicial intervention in labor disputes. (Three years later, the Taft-Hartley Act would further limit union autonomy and encourage states to enact “right to work” laws). At the same time, the decision left black workers at the end of the job queue by not disturbing the seniority rules cherished by all unions (including the CIO), rules relentlessly used to preserve the good jobs for whites.

The second event occurred in the early 1960s when California established a state fair employment practices commission following a decade-long political struggle in which labor and civil rights groups worked together. Their relationship soured, however, when the unions emasculated the Commission by ensuring that it “did not threaten labor’s key legal entitlements: unions’ right to autonomous decision making, and the sanctity of their collective bargaining agreements.” (114) Also undermining the alliance were the struggles over two propositions on the state ballot (one to enact a right-to-work law, the other to repeal the state’s fair housing law), and the U.S. Supreme Court’s 1960 Steelworkers’ Trilogy rulings limiting courts’ power to intervene in collective bargaining. The trilogy marked what Schiller calls “the legal apotheosis of industrial pluralism” (141), a regime consisting of majoritarian selection of a bargaining representative, exclusive representation, the sanctity of seniority, governance by the NLRB, and the primacy of arbitration in resolving disputes within a bargaining unit. These struggles made labor and civil rights forces antagonists: the unions, by fiercely protecting this regime, stymied minorities’ access to jobs and remedies for job discrimination.

This breach in the alliance soon became unbridgeable. By 1966, Schiller writes, “disputes over far employment practices. . .would strain what was left of the labor-civil rights alliance to the breaking point.” (157) That year, a bitter, highly-publicized dispute between the Hilton Hotel and its black housekeeping staff, placed the alliance’s members on opposite sides. The unions demanded that the negotiated agreement between the Hilton and its maids (represented by the NAACP) be nullified. Any settlement, they insisted, could only be reached pursuant to the labor agreement with the hotel. The arbitration board, a key element of industrial pluralism, agreed.

In Schiller’s final illustrative incident, black employees, represented by a union under a union security agreement with the employer, demanded that it boycott the employer. Although the union was sympathetic to the blacks’ complaints about discrimination, it rejected a boycott, invoking its exclusive representation prerogative and leaving the boycotters without any independent legal recourse against the employer under the Wagner Act. But by this point, Title VII of the Civil Rights Act was firmly in place, providing minority workers an agency- and court-enforced remedy against both discriminating unions and employers. Title VII was altogether different than the labor law regime favored by unions and unionized employers, a regime that rejected state intervention in labor disputes. As Schiller puts it, “Title VII was Congress’s declaration that race was different. Unions could bargain away many rights, but not those articulated in Title VII. . .[T]he conflict between industrial pluralist majoritarianism and facial egalitarianism had shattered the alliance between labor unions and the civil rights movement.” (214, 218)

This tectonic collision of these two groups as they embraced incompatible legal regimes is Schiller’s leitmotif, and he develops it artfully and convincingly. Unfortunately, in my view, he goes on to makes a much grander interpretive claim – that this collision produced “a fatal weakening of liberalism” (5) – which is both hyperbolic and, frankly, wrong. Here, his broad interpretive reach exceeds his firm narrative grasp. In fact, liberalism’s social vision – which I define as expanded individual rights, economic growth, public entitlements for basic human needs, a dynamic civil society, and robust democratic participation – has not collapsed but flourished during the period that Schiller chronicles.[1] In the American understanding of liberalism, it is measured by equality of opportunity, not of result. And while equal opportunity is far from having been achieved, it is (even after Donald Trump’s election) vastly closer to realization than it was then. (As it happens, unions and civil rights groups today are much closer allies than they were then.)

Fortunately, this interpretive cavil in no way diminishes the value of Schiller’s assiduous and finely wrought narrative of an important period of American legal and political development.

Posted on 19 June 2017

PETER SCHUCK, an emeritus Yale Law School professor, is the author, most recently, of One Nation Undecided: Clear Thinking about Five Hard Issues That Divide Us, (Princeton University Press, March 2017) and Why Government Fails So Often, and How It Can Do Better, (Princeton University Press, 2014).