Celebrating Workers Means Protecting Them in Our Courts

Just 6 percent of U.S. appeals court judges have represented workers—but two-thirds of these judges have experience representing corporations. This is not the system working people deserve.

A demonstration of Amazon workers on Jan. 15, 2022. (Joe Piette / Flickr)

As we honor workers this Labor Day, we must commit to ensuring our court system serves all people fairly—not just the wealthy and powerful. Most people would recognize that a Black woman suing her employer for racial discrimination might be less likely to receive the justice she deserves if her fate is determined by a jury of white men. But there’s another, less obvious factor often working against her: the professional background of the judges who hear her case and appeals. 

Of the 171 active federal judges serving on our nation’s circuit courts, only 11 have any experience as attorneys advocating for economic justice. That’s just 6 percent of our appeals court judges who have represented workers challenging wage theft or fighting to form a union, consumers who’ve been harmed by products, or who have served as civil legal aid attorneys. On the other hand, two out of three judges have experience representing the corporations who defend against such lawsuits, while more than one out of four have experience as prosecutors—in a criminal justice system that disproportionately punishes the poor and disadvantaged. 

These details, and others found in a recent special report from Alliance for Justice (AFJ), speak to a significant imbalance in our justice system—one with consequences for everyday Americans. Judges with a background in corporate law are 43 percent less likely to rule in favor of workers in employment cases, while former prosecutors are 56 percent less likely to rule in favor of workers. This is not the system working people deserve. 

For decades, conservatives have advocated that lawyers who worked for big law firms and represented corporations are more qualified to be judges, a ruse that helped them pack our courts with judges who would serve corporate interests. Those with economic justice experience—those who’ve actually represented working Americans—were framed as “biased” or unsophisticated and thus unqualified for the bench. Democrats and Republicans alike accepted this narrative, which is why so few judges now have economic justice backgrounds. 

To President Biden’s credit, he’s made huge strides in diversifying our courts through his judicial nominees. His commitment to nominating public defenders, for example, has started to tip the scales against the overrepresentation of prosecutors on our courts. 

But the number of economic justice judges on our appeals courts has actually decreased during the Biden administration. While several have announced they are taking senior status, the president has successfully appointed only one such judge: Jennifer Sung, who had experience representing unions. A second, Rachel Bloomekatz, awaits confirmation. 

The magnitude of damage from this imbalance is incredible. AFJ estimates that just seven Supreme Court cases over the past decade have caused economic harm to an estimated 74 million Americans. For example, a pair of Supreme Court decisions in 2018 had a devastating impact on workers. Janus v. AFSCME weakened the unions of an estimated 5.9 million public sector workers, while Epic Systems v. Lewis gutted the ability of 60 million private-sector workers to challenge workplace injustices through class actions or arbitrations. 

Just seven Supreme Court cases over the past decade have caused economic harm to an estimated 74 million Americans.

The lack of regard for workers has been particularly concerning during the COVID-19 pandemic. The Court’s ruling this year against OSHA’s “vaccine or test” rule led to an estimated 250,000 hospitalizations and 6,500 preventable deaths from COVID in just six months. 

When judges have experience protecting workers and consumers, the difference is evident. For example, judges like the Sixth Circuit’s Jane Stranch and the Ninth Circuit’s Marsha Berzon, both former union-side labor lawyers, have played a key role in cases where they recognized the realities of discrimination in the workplace.  

Workers and consumers deserve a judiciary that can always fairly weigh their cases. Just as we recognize the unfairness of a jury of all white men deciding a Black woman’s racial discrimination case, we should also recognize that a court system dominated by corporate attorneys and former prosecutors is not set up to protect everyday Americans. 

We must do better to truly celebrate working Americans. Adding more economic justice judges to the bench will help protect families and unrig our nation’s immense wealth inequalities. We know that if we fail to correct this imbalance, it will only result in more lost livelihoods—and lives. 

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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About and

Rakim H. D. Brooks is the president of Alliance for Justice and Alliance for Justice Action Campaign and a public interest appellate lawyer.
Jenny Hunter is a labor lawyer, writer, consultant to unions and nonprofit organizations, and author of the Alliance for Justice report Economic Justice, Judges, and the Law.