It’s official: Unions are cool again. Spearheaded by high-profile unionization drives at brand name companies like Starbucks, Amazon, Tesla, and REI, the labor movement has garnered national media attention. And, win or lose, each attempt seems to make organized labor more popular. Last August, a Gallup poll found that 71 percent of Americans approve of labor unions—the highest approval rating in over fifty years.
Yet despite this half-century high, rates of union membership are historically low: 10.1 percent in 2022, according to the U.S. Bureau of Labor Statistics. That’s a slight decrease from the year prior, and the lowest union membership rate on record. The data is even more troubling when parsed between the public and private sectors: About a third of public workers are unionized, compared to just 6 percent of private-sector workers.
The discrepancy between the rates of union approval and union membership can be attributed to many of the usual suspects: union-busting bosses and Republican politicians. But for decades, the anti-union team has been aided by a third co-conspirator: the United States Supreme Court.
Nearly a century ago, Congress passed a landmark labor law known as the Wagner Act, which, among other things, created the National Labor Relations Board (NLRB) to enforce workers’ rights to unionize, collectively bargain, and strike. Workers took advantage of these rights almost immediately: After the World War II “no-strike pledge” ended, frustration with low wages reached a breaking point, leading to a massive wave of strikes in major industries.
But a pro-capital backlash soon followed: In 1947, Congress overrode President Harry Truman’s veto to pass the Taft-Hartley Act, which cut into the Wagner Act’s labor protections by making unions (not just employers) susceptible to unfair labor practice charges and legalizing so-called “right to work” laws that undermine union power. Taft-Hartley also hampered the NLRB’s ability to protect unions by establishing a general counsel position, subject to confirmation by the notoriously undemocratic and historically anti-labor Senate. As employers continued their attacks on organized labor throughout the Cold War era, the NLRB was their primary target, and the Supreme Court was their weapon of choice.
The first major blow came in 1965, when the Supreme Court in American Ship Building Company v. NLRB legalized lockouts—the practice of temporarily closing a plant and firing employees for the sole purpose of putting pressure on workers during contract negotiations. Essentially, this meant if a union was negotiating for a better contract, the business could just close down until workers accepted a bad deal. Unlike businesses, which have enough funding to keep them going through lockout periods, workers who live paycheck-to-paycheck have their livelihood threatened by the lack of wages. With hungry bellies and rent due, locked-out workers are coerced into accepting the bosses’ demands.
Five years later in H.K. Porter v. NLRB, the Court stripped the Board of its power to force companies to make specific contract provisions during negotiations. No longer could the NLRB identify a company’s practices as exploitative and force it to stipulate, for example, to guaranteeing health insurance. Instead, when employers and unions reached a stalemate, the Board had to just send them back to the negotiating table, where the employer could continue playing hardball. H.K. Porter gutted the NLRB of the ability to fulfill its core function of ensuring workers’ collective bargaining rights, turning it from an empowered referee to a helpless spectator—encouraging employers to “play nice” from its place on the sidelines.
The Roberts Court continued where the 20th-century Courts left off. In Epic Systems Corp. v. Lewis, decided five years ago this month, the Court held that companies could force employees to use out-of-court arbitration to solve workplace disputes, instead of exercising their rights under the Wagner Act. In his majority opinion, Justice Neil Gorsuch relied on the text of the 1925 Federal Arbitration Act (FAA), which generally endorsed arbitration as a means of resolving legal disputes. But the FAA specifically bars arbitration in circumstances in which “grounds exist at law or in equity for the revocation of any contract.” The Wagner Act’s explicit guarantee of workers’ collective bargaining rights seems like it would qualify. Yet Gorsuch and the other four conservatives concluded that because the Wagner Act didn’t expressly prohibit arbitration, Epic Systems was free to force its employees into it.
Epic Systems struck at the heart of collective bargaining rights, as companies could avoid courtrooms simply by burying a clause in contracts designating arbitration as the method of dispute settlement. At the time, many theorized about the impacts Epic Systems would have: The New York Times editorial board criticized the decision, stating that “companies will only have more incentive to stiff their workers, knowing that they’ll rarely be sued—and even if they are, they’re likely to fare better in arbitration than in the courts.” The predictions have proven prescient: Just a year after the decision, the Economic Policy Institute found that the rate of arbitration agreements, which was already on the rise before Epic Systems, had accelerated following the decision. EPI predicted that by 2024, 80 percent of non-union workers would be subjected to forced arbitration clauses.
Just a month after Epic Systems, the Roberts Court finished its one-two combination against workers in Janus v. AFSCME. Writing for (once again) the five conservatives, Justice Samuel Alito’s opinion overturned the 1977 Abood v. Detroit Board of Educators decision, which enabled public-sector unions to collect “agency fees” from non-union workers whose rights the unions nonetheless bargain for. Agency fees have long been unions’ defense against the free-rider problem that enables non-paying workers to benefit from the union’s work. Outlawing agency fees forced unions to represent some workers for free, sapping them of resources and further contributing to the decline in membership.
Like many of the cases the Court uses to get rid of legal rights, Janus was the product of the conservative legal movement’s effort to hamstring the power of unions. In 2015, the anti-union Illinois governor Bruce Rauner brought a case challenging Abood, but a federal district court ruled that Rauner had no standing. Instead, the case moved forward with a new plaintiff: Mark Janus, an Illinois child support specialist, who claimed he shouldn’t be forced to pay union agency fees because they violated his First Amendment rights. The Supreme Court agreed, deciding that the First Amendment is not only an excuse for businesses to discriminate against gay people, but also a convenient way for them to bankrupt unions.
Much like Epic Systems, predictions on the impact of Janus were bleak. As Adam Liptak wrote in The New York Times, the result would “encourage many workers perfectly happy with their unions’ work to make the economically rational decision to opt out of paying for it.” Fortunately, state legislators responded to Janus with a slew of labor protection laws in affected states in an attempt to head off the worst-case scenarios. On the one hand, there is some evidence that this helped: Public-sector union membership is down just 0.8 percent in the five years since the decision. On the other hand, now that public-sector agency fees are “unconstitutional,” one does not need a crystal ball to see where the conservative legal project is headed next: attacking private-sector agency fees on the same grounds.
Just as the 20th-century Supreme Court cases contributed to a decline in union membership over several decades, it’s likely that unions have yet to feel the full consequences of Janus and Epic Systems. As the labor movement continues to gain momentum, the organizers and workers of today are going to find their efforts hampered by an increasingly aggressive anti-labor Supreme Court. As with its rulings on abortion rights, guns, and campaign financing, the Supreme Court is acting as an almighty barrier against democratic will, stopping Americans from achieving the unionization they overwhelmingly want and desperately need.