The Courts Won’t Save Us. Organized Labor Just Might.

The Supreme Court will not save us.

In the last five years, the Court has erased generations of societal progress. Case after case, it has upended once-settled legal doctrine and stripped Americans of rights they assumed were permanent. Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to an abortion. Louisiana v. Callais gutted nearly all that remains of the Voting Rights Act. Students for Fair Admissions v. Harvard ended affirmative action in higher education. From abortion to voting rights to college admissions and more, the legal landscape that drew a generation of advocates into the profession has all but vanished.

For decades, the courts represented one of the central pathways to achieving social change. That faith wasn’t wholly misplaced. The Supreme Court of the 1950s and 1960s, under Chief Justice Earl Warren, helped lay the legal foundations necessary to build a more just and democratic society.

Before the Warren Court, the country looked nothing like it does now. Formal segregation dominated the South. A majority of states banned interracial marriage. Police could interrogate suspects without notifying them of their rights, and prosecutors could convict them using evidence obtained through illegal searches. A criminal defendant too poor to afford a lawyer had no right to one paid for by the state. There was no constitutional right to contraception. A person suffering from addiction could be imprisoned simply for being an addict. And political dissidents could be prosecuted for speech alone. Case-by-case, the Warren Court dismantled all of this.

That legacy shaped an entire generation of legal advocates. As courts stopped being viewed as mere venues for resolving disputes and instead as vehicles for pursuing systemic change, young people throughout the country were inspired to pursue law school. One legal scholar, writing the year after Warren’s retirement, put it plainly: “If the Warren Court is destined to have any lasting impact on American life, it will be in this generation of young lawyers it spawned.”

But that story has always been incomplete. Besides overstating what courts can do, it understates how often courts have impeded democratic progress and obscures the institutions necessary to realize the promise of a more democratic society. The Supreme Court’s decision in Brown v. Board of Education did not desegregate a single school by itself. It was the people: People who dedicated years to marching, boycotting, and organizing to put unbearable pressure on Congress to finally enact the Civil Rights Act of 1964. 

For every decision like Brown, there is also a Plessy. For every ruling that inched the country closer to becoming a just society, there is a Supreme Court decision that lunged it a generation back. The Roberts Court has proved no different. Citizens United v. FEC paved the way for unlimited corporate money in politics. The Voting Rights Act, the Warren Court’s own contemporary, has all but succumbed to the very Court that once affirmed it. Even the constitutional status of birthright citizenship was a mere one vote away from being stripped from the Fourteenth Amendment. Historically, the courts have never been a reliable ally to those committed to realizing a truly democratic society. It’s time that advocates act like it.

That raises the question: If not the courts, then what? The answer is organized labor. 

The Court did not become what it is today in a vacuum. After decades of organizing, the conservative legal movement has remade the federal judiciary in its image. The Federalist Society, the conservative legal network that led this campaign, did more than simply litigate in courts. It carefully built the political and economic infrastructure necessary to carry out its goals. And only then did the Court begin reliably delivering results. 

Advocates cannot expect to out-maneuver that movement inside the very institution it shaped. But they can build a different kind of power: organized workers capable of confronting corporations and governments directly. Unions can exercise real material leverage in society. From striking to slowdowns, unions can withhold the labor that corporations and governments depend on, forcing them to the table in a way no lawsuit reliably could. Litigation depends entirely on courts that have proved to be more of a barrier to democratic progress than a bulwark for it. An organized workforce can act directly, using concerted, collective action to force change on its own terms. 

That leverage is how the labor movement helped build both the American middle class and much of modern America itself. The eight-hour workday, the weekend, workplace safety protections, employee benefits, and wages (once) capable of supporting a family did not emerge naturally from economic growth. Wealth never simply trickled down. Workers organized and forced employers and governments to improve working conditions and distribute more of the wealth that those workers created.

Today’s unions are nowhere near as strong as the labor movement at its height. Union density sits at roughly ten percent of the American workforce, and just under six percent in the private sector—a record low in nearly a century. But this wasn’t always the case. The Great Depression and the economic conditions it produced triggered a wave of organizing and labor actions throughout the country. Instead of waiting for courts to rescue them, workers organized, occupied workplaces, and disrupted industries until employers and elected officials could no longer ignore their demands.

That mobilization of workers, and the interracial and cross-regional solidarity essential to its success, helped force the passage of the New Deal and, later, the Civil Rights Era’s legislative victories. Unions and labor organizations, from the United Auto Workers to the Negro American Labor Council, were crucial to these era-defining projects precisely because they could confront power directly. By organizing across partisan and racial lines and disrupting the status quo, labor movements teach people what solidarity actually looks like in practice.

Of course, unions in America are far from perfect. Like nearly all institutions in this nation’s history, they’ve participated in racial exclusion and protected narrow organizational interests at the expense of broader movements. But the answer to these shortcomings is not to abandon one of history’s most effective vehicles for achieving material change. It is to build more democratic and inclusive forms of worker solidarity and resistance.

But preventing this are the barriers that have made organizing workers in the United States extraordinarily difficult. Decades of political attacks, hostile judicial decisions, lax enforcement of labor laws, and increasingly sophisticated resistance from employers have all contributed to that shift. But difficulty is far from impossible, and recent developments have shown that none of it has to stay this way.

In the absence of a functional Congress, workers have turned to states to strengthen the right to organize. In 2023, California passed AB 1228, which in addition to raising the hourly minimum wage for fast food workers to $20, created a Fast Food Council of workers and industry representatives, charged with advancing wage standards and workplace conditions. The following year, Massachusetts voters approved a ballot initiative allowing drivers for companies like Uber and Lyft to unionize and bargain collectively. Those drivers later formed what was both the first rideshare union in the country, and the largest new private sector bargaining unit in eighty-five years. Not one of these victories began in a courtroom. Instead, each began with workers organized well enough that employers and elected officials could not afford to ignore them. 

None of this means that advocates should abandon the courts entirely. At a time when the Supreme Court is actively undermining the foundation necessary to build a democratic society rather than protecting it, legal advocacy remains essential. Lawyers are not the primary means to achieving social change, but they are a defensive line: defending hard-fought gains in the courts where possible and strategically avoiding hostile legal terrain where necessary. It also means representing fired organizers, protecting union elections from employer interference, and working to keep labor’s legal infrastructure intact. 

From rolling back some of our most fundamental rights to giving moneyed interests even more control over our everyday lives than they already have, the Roberts Court has delivered more of the conservative legal movement’s agenda than Congress ever has. For those who still believe the Court has more to affirmatively offer us, the lesson is not that courts don’t matter—it’s that they cannot generate change on their own. 

A thriving democracy needs more than rights announced from above. It needs people who can build and defend them from below. The Supreme Court may not save us. But workers can.