The Death of Labor Law and the Rebirth of the Labor Movement

What if the current Supreme Court could do what Congress has failed to do since 1935—reform labor law to facilitate worker organizing? The current Supreme Court has demonstrated a strong antipathy toward unions. Companies such as SpaceX are trying to take advantage of that hostility to the administrative state in their fight against workers forming a union by seeking to render the National Labor Relations Board a zombie agency. At the same time, the President has taken measures to undermine its independence. Scholars of both administrative and labor law think this is bad. This Article takes a different approach. This Article analyzes how a Supreme Court that is hostile to labor’s interests could instead create conditions that lead to a 1930s style upsurge in organizing activity by returning labor law to the “law of the jungle.” That primitive state would include a state of law in which the National Labor Relations Act no longer governs collective bargaining in the private sector, but (1) courts are barred by the Norris-LaGuardia Act from issuing injunctions against peaceful protests, and (2) states are free to design new collective bargaining regimes free from the threat of preemption. The fact that states would be free to regulate labor affairs as they see fit would allow unions to take more targeted actions using fewer resources and build toward a national demand for a new federal labor law in time for the general strike that United Auto Workers President Shawn Fain has called on May 1, 2028.

You can’t win, Darth. If you strike me down, I shall become more powerful than you can possibly imagine.

—Obi-Wan Kenobi to Darth Vader