That thought crossed my mind for the first time recently. It’s surprising not just because he’s a Supreme Court justice appointed in ultra-controversial circumstances, but because he was talking about restaurants.
In a concurring opinion published on June 21, Kavanaugh made a fleeting reference to one of the biggest and thorniest problems the restaurant business faces today. His comment helps illuminate industry standards and customer attitudes, which need to be changed. Hopefully, the foodservice industry can prove him right.
Before we get to that, I should probably explain what on earth is going on here. Kavanaugh’s comments came in a decision allowing NCAA athletes limited rights to cash in on their star status, by collecting free academic swag like textbooks and laptops. In addition to the court’s unanimous ruling for players, Kavanaugh wrote separately to suggest that the NCAA’s reliance on unpaid labor could be ruled illegal in its entirety.
The NCAA’s main argument in favor of not paying its star athletes is that going unpaid is the defining trait of college sports. Yes, that’s circular logic. It’s like saying you’re not allowed to put salsa on this taco because this is the taco with no salsa on it. The reply is, “So? I like salsa.” And then the NCAA would say, “No salsa,” and then you’d say, "Yes salsa," and then it would devolve into an elementary school fight of, “Nuh-uhs” and, “Yuh-huhs.”
Kavanaugh’s critique is more elegant: “The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks….Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a ‘tradition’ of public-minded journalism.”
Obviously, this is a legal analysis, but my gut reaction was that there are a whole lot of customers, at least in Dallas, who would prefer to eat food from low-paid cooks. Can we convince them otherwise?
Those customers may not know that’s the case. But the dining industry today faces a crisis of misinformation, as restaurants’ visitors frequently do not know the costs associated with serving food. And people still want their food to be cheap.
This conversation most frequently arises in connection with immigrant foods. In my five years as the Observer’s critic, I’ve had debates on Twitter on Reddit with people who declare that no taco should ever cost more than $2 and no bánh mì more than $5, even though the cooks need to profit. Many immigrant chefs cite this attitude as something they fight against.
But even well-intentioned customers can be ignorant of the true costs of running a restaurant. Everyone knows that their money helps pay for the price of the food itself. But few customers have the knowledge to gauge the costs of rent, permits, taxes, utilities, labor, repairs to broken equipment, inventory loss in winter ice storms and so forth.
"All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks." — Supreme Court Justice Brett Kavanaugh
On Facebook, customers ask questions about cost: “I understand why [prices] went up, because of pandemic where they had to maintain 50% occupancy. So they raised their price and survived. We all supported them. Now the situation is changed and they can operate with 100% occupancy, so why not the pricing is going back where it used to be?”
There are a lot of reasons: Inflation, rising ingredient costs, rising labor costs, rising rent, the uncertainty and stress of constantly shutting down and reopening a business. Oh, and the desire to finally turn a profit.
I sometimes worry a certain category of customers, even if they’re well-informed, may think that restaurateurs simply should not profit from their businesses. As if restaurants are nonprofits. Or, in Kavanaugh’s words, customers “prefer” low-paid cooks.
That idea is influenced by the anthropologist David Graeber and his extraordinary, well-named book Bullshit Jobs, in which the author proposes that people expect more rewarding, fulfilling work to be paid worse, and less rewarding work to be paid more. Graeber points to jobs like firefighter, teacher, garbage collector, journalist and nurse, which we all know make the world a better place, but which get paid significantly less than “bullshit” jobs like middle manager, stock trader and corporate lawyer. (Remember, Kavanaugh also mentioned nurses and reporters.)
The idea is that a purposeful life full of warm, fuzzy feelings is compensation in itself, so people who are constantly reminded they make the world a better place should accept less financial reward for all the good they’re constantly doing.
Or, as one Facebook user put it bluntly, “Restaurant owners did a lot of noble things during pandemic (offered free or discounted food). However, the price increases since are downright outrageous.” In other words, making a sacrifice is good. Making an income is not.
These are hard times for almost everybody. Millions of people went jobless for months or a year. Millions more, including this author, saw their incomes drop. Most of the money in this country is being vacuumed up by a handful of gazillionaires. It can be hard to swallow a price increase.
But we restaurant lovers can’t pin our economy’s weaknesses on restaurant owners. And we can’t blame restaurant owners for trying to make a little money. They’re doing the best they can to cope with rising costs and build their own lives. The same goes for service industry workers, who are also fighting for a bigger slice of the monetary pie.
As jobs return, service industry employees are being choosy, demanding higher wages, fighting for benefits or quitting the profession altogether. Who can blame them?
All of which brings me back to Kavanaugh’s use of foodservice as an analogy for the NCAA. I hope that restaurant customers are willing to pay for well-compensated labor and to keep tipping high. I hope Kavanaugh is right that we would join workers in objecting to an attempt to depress wages.
There’s a body of nationally-renowned workers with unique skills who have subsisted for years on peanuts, left in the cold by a system that has long demanded they accept minimal compensation for their work. They should get paid.
Oh, and those college athletes should get paid, too.