POWER STRUGGLES—THE TYRANNY OF MERIT AND THE DEGRADATION OF WORK

AMERICAN JOURNAL
of LAW and EQUALITY

POWER STRUGGLES—THE TYRANNY OF MERIT
AND THE DEGRADATION OF WORK
Comment on M. Sandel’s The Tyranny of Merit

Kate Andrias*

The ideal of meritocracy is attractive: individuals obtain wealth, leadership roles, and so-
cial status based upon talent and hard work, rather than by virtue of their position in the
aristocracy or their family connections. Sometimes framed as “equality of opportunity” or
even “the American Dream,” meritocracy has for decades garnered widespread popular
support in the United States, becoming more embedded over time. Yet, mounting empir-
ical evidence from social scientists demonstrates that our country is not really a meritoc-
racy. Some wield massive advantages from the beginning; others, no matter how talented
and hardworking, have little hope of obtaining a coveted spot at an Ivy League institution
or even a decently paying job.1

In The Tyranny of Merit: What’s Become of the Common Good?, Michael Sandel argues
that the commitment to meritocracy is at the core of our nation’s problems.2 In his view,
meritocracy has unraveled our social bonds, produced resentment among nonelites, and
even brought the nation to the brink of autocracy. Sandel is not the ﬁrst to take issue with
meritocracy. Several years back, Professor Lani Guinier, of Harvard Law School, focused

Author: *Kate Andrias is a Professor of Law at Columbia Law School. She teaches and writes about constitutional law,
labor and employment law, and administrative law, with a focus on problems of economic and political inequality. Her
articles have been published in numerous books and journals, including the Supreme Court Review, the Yale Law Jour-
nal, the Harvard Law Review, the NYU Law Review, and the Texas Law Review.

See, e.g., Michael D. Carr & Emily E. Wiemers, The Decline in Lifetime Earnings Mobility in the U.S.: Evidence
from Survey-Linked Administrative Data 1–40 (Washington Center for Equitable Growth, 2016), https://
equitablegrowth.org/wp-content/uploads/2016/05/carr_wiemers_2016_earnings-mobility1.pdf; Raj Chetty,
Nathaniel Hendren, Patrick Kline & Emmanuel Saez, Where Is the Land of Opportunity: The Geography of
Intergenerational Mobility in the United States, 129 Q.J. ECON. 1553 (2014).
See MICHAEL J. SANDEL, THE TYRANNY OF MERIT: WHAT’S BECOME OF THE COMMON GOOD? 17 (2020).

© 2021 Kate Andrias. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0
International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00004

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AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

on how universities that purport to recognize merit systematically advantage elites; she
proposed to redeﬁne educational merit to value democratic participation and collabora-
tion.3 Professor Daniel Markovits, of Yale Law School, more recently warned that the mer-
itocracy leads to anxiety and stress for everyone, in part because the winners take so much,
and the losers are left with so little.4

Sandel, however, oﬀers perhaps the most forceful and compelling critique of meritoc-
racy to date. The problem, in his view, is not just that some are given unfair advantage in
developing their merit (although, of course, they are); or that, in practice, the wrong traits
are valued as meritorious (although this is true as well); or even that meritocracy produces
anxious winners and losers (although it does). Sandel contends that, even if perfected,
meritocracy would fail, because it undermines the possibility of a common good.

Sandel shows that the very concept of meritocracy produces self-satisﬁed elites who “come
to believe that they deserve their success,”5 and who look down upon the less educated.6 Even
worse, Sandel demonstrates, meritocracy tells nonelites—ordinary workers—that they deserve
their fate, that the work they do is a lesser contribution to the common good, and that they are
less worthy of social recognition and esteem.7 Meritocracy—and the devaluing of the worker—
thus diminishes “our capacity to see ourselves as sharing a common fate. It leaves little
room for the solidarity that can arise when we reﬂect on the contingency of our talents
and fortunes.”8 Ultimately, meritocracy leaves us incapable of pursuing a shared democratic
project. In order to ﬁnd our way to a “politics of the common good,” Sandel argues, we
must aﬃrm the “dignity of work.”9 As he puts it, the crisis of the COVID-19 pandemic has
highlighted the importance of “work performed by grocery store clerks, delivery workers,
home care providers, and other essential but modestly paid workers,”10 creating an oppor-
tunity to restore the dignity of work and “to seek a common good beyond the sorting and
the striving.”11

Sandel has accomplished a remarkable feat in pushing beyond arguments for a more
perfect meritocracy and in elucidating the perniciousness of deeming some people funda-
mentally more meritorious than others. The book is an important and timely contribution
to the national debate, considerably deepening existing critiques of meritocracy. Yet, the
choice to focus on an abstract concept, even one as important as merit, leads to limitations

3
4

5
6
7
8
9
10
11

LANI GUINIER, THE TYRANNY OF THE MERITOCRACY: DEMOCRATIZING HIGHER EDUCATION IN AMERICA (2015).
DANIEL MARKOVITS, THE MERITOCRACY TRAP: HOW AMERICA’S FOUNDATIONAL MYTH FEEDS INEQUALITY, DISMANTLES THE
MIDDLE CLASS, AND DEVOURS THE ELITE (2019).
SANDEL, supra note 2, at 5, 226.
Id. at 95–96.
Id. at 5, 198.
Id. at 25.
Id. at 6, 208.
Id. at 213.
Id. at 14–15.

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POWER STRUGGLES—THE TYRANNY OF MERIT AND THE DEGRADATION OF WORK

in the book’s analysis, for the problems facing the nation do not stem solely or primarily
from an abstract idea, but also from institutionalized exercises of power. To understand
how work came to be treated with so little dignity, and to envision a diﬀerent reality, a
richer account is needed: one that examines the collective eﬀorts of workers to bring about
dignity at work, the contrary eﬀorts of powerful elites, and the racial and gender dimen-
sions of these struggles.

Sandel harkens back to a better time for work and workers. He writes that “[f]rom the
end of World War II to the 1970s, it was possible for those without a college degree to ﬁnd
good work, support a family, and lead a comfortable middle-class life.”12 Subsequent glob-
alization, Sandel contends, brought great rewards to the well-credentialed, but it did little
for most workers, particularly white, male workers whose wages have stagnated, who have
dropped out of the labor force, and whose life expectancy and health have declined.13 Ac-
cording to Sandel, the result of these dynamics is not only mounting economic and phys-
ical hardship, but the loss of social esteem for the worker, which then leads to resentment
of elites and support of right-wing populist policies.14

All this is true. But the picture Sandel hastily paints of the elusive “comfortable middle
class life” would beneﬁt from an account of the struggle that produced that middle class
life (for some) and then destroyed it (for almost all). Contrary to Sandel’s suggestion, dig-
nity was not bestowed on the autoworkers and steelworkers of the mid-twentieth century
by the grace of the governing elites.15 Rather, workers fought for it: in the ﬁrst half of the
twentieth century, they engaged in decades of mass protests and strikes, suﬀering injunc-
tions, jail, and often violent repression by both employers and the State.16 Only through
their collective action did workers achieve higher wages, decent working conditions, and,
ultimately, more digniﬁed work.

Yet, industries dominated by African Americans were almost entirely excluded from
the New Deal promise of digniﬁed work, as was much of women’s labor.17 In the decades
following World War II, people of color and women demanded that their work also be
treated fairly. Recall the Memphis, Tennessee, sanitation strike during which Martin Luther

12
13
14
15
16

Id. at 197.
Id. at 197–202.
Id. at 202–05.
Id. at 29.
CHRISTOPHER L. TOMLINS, THE STATE AND THE UNIONS: LABOR RELATIONS, LAW, AND THE ORGANIZED LABOR MOVEMENT IN
AMERICA, 1880–1960, at 11–59 (1985); William E. Forbath, Law and the Shaping of the American Labor Movement,
102 HARV. L. REV. 1109, 1185–95 (1989); NICK SALVATORE, EUGENE V. DEBS: CITIZEN AND SOCIALIST 131–38, 148–50
(1982).
IRA KATZNELSON, FEAR ITSELF: THE NEW DEAL AND THE ORIGINS OF OUR TIME 127–29, 161–94 (2013); ALICE
KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN, AND THE QUEST FOR ECONOMIC CITIZENSHIP IN 20TH-CENTURY
AMERICA 106 (2001).

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ISSUE 1 | 2021

King, Jr., was assassinated: “I am a Man,” the strikers’ signs read.18 In Charleston, South
Carolina, striking African American healthcare workers demanded “Human Dignity for
Hospital Workers.”19 But to this day, agricultural and domestic work remain largely with-
out the protections of the National Labor Relations Act, the Fair Labor Standards Act, and
other labor laws that assure workers a measure of dignity on the job; care work remains
woefully undercompensated; and the racial wealth gap is a chasm.

Meanwhile, the degradation of industrial work upon which Sandel focuses was not an
accidental byproduct of elites’ misplaced faith in education, technocracy, and market. Be-
ginning in the 1970s, employers aggressively moved capital overseas and ﬁssured employ-
ment relations, turning to subcontractors and independent contractors in a concerted
eﬀort to reduce labor costs, evade responsibility to their workers, and eliminate workers’
collective voices in their jobs.20 Workers fought to maintain their dignity: They held pro-
tests. They went on strike. They sought to engage in civic discussion about the implica-
tions of globalization and ﬁnancialization. But they lost these battles—with legal and
political elites frequently weighing in against them. Consider First National Maintenance
v. NLRB, in which the Supreme Court held that employers need not bargain with union-
ized workers about whether to close operations.21 Or the MacKay Radio doctrine, which
allows workers to be permanently replaced, without any shred of dignity, for exercising
their legally protected right to strike.22 Or President Reagan’s decision to replace the strik-
ing air traﬃc controllers in 1981.23

To envision a world in which work is treated with dignity also requires a closer look at
what work is like today. The lack of dignity aﬀorded to contemporary workers goes far
beyond the low wages and rising illness among the white working class that Sandel high-
lights. Most workers have no right to deliberate collectively over the terms and conditions
under which they labor. Employers can change work assignments and schedules at any time
and without explanation. They can monitor workers’ every move using new technologies.

21
22
23

DeNeen L. Brown, “I Am a Man”: The Ugly Memphis Sanitation Workers’ Strike that Led to MLK’s Assassination,
WASH. POST, Feb. 12. 2018, https://www.washingtonpost.com/news/retropolis/wp/2018/02/12/i-am-a-man-the
-1968-memphis-sanitation-workers-strike-that-led-to-mlks-assassination/.
Adam Parker, Local Hospital Workers’ Courage Changed Workplaces Forever, POST & COURIER, Sept. 30, 2013,
https://www.postandcourier.com/archives/local-hospital-workers-courage-changed-workplaces-forever/article
_06e8c27e-6362-5734-9f68-60452286c0d7.html; see also LEON FINK & BRIAN GREENBERG, UPHEAVAL IN THE QUIET
ZONE: 1199/SEIU AND THE POLITICS OF HEALTHCARE UNIONISM (2d ed. 2009).
See Kate Andrias, The New Labor Law, 126 YALE L.J. 2, 21–32 (2016); JEFFERSON COWIE, CAPITAL MOVES: RCA’S
SEVENTY-YEAR QUEST FOR CHEAP LABOR 2 (1999); DAVID WEIL, THE FISSURED WORKPLACE: WHY WORK BECAME SO BAD
FOR SO MANY AND WHAT CAN BE DONE TO IMPROVE IT 10 (2014).
452 U.S. 666 (1981).
NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938).
JOSEPH A. MCCARTIN, COLLISION COURSE: RONALD REAGAN, THE AIR TRAFFIC CONTROLLERS, AND THE STRIKE THAT
CHANGED AMERICA (2011).

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POWER STRUGGLES—THE TYRANNY OF MERIT AND THE DEGRADATION OF WORK

They can force workers to sign away their rights to go to court. They can terminate workers
who complain. Indeed, they can terminate workers for any reason or no reason at all (save
legally proscribed reasons, such as race or sex discrimination).24

Drawing from proposals oﬀered by both conservatives and progressives, Sandel sug-
gests a set of policy reforms including income subsidies; restrictions on trade, outsourcing,
and immigration; and a new tax policy that would discourage ﬁnancial speculation and
honor productive labor.25 Understandably for a book of this sort, the policy recommen-
dations are thinly developed. But even if further elaborated, the prescriptions would not
match the normative ambition of the book—nor would they do enough to address prob-
lems of inequitable resource allocation, labor exploitation, and economic dispossession
that undermine our politics of a common good.

Ultimately, Sandel is right to call for ending a regime in which most workers are told
the work they do is a lesser contribution to the common good, that they are less worthy of
social recognition and esteem, and that they are of lesser merit. He is right to recognize
that work produces great value and, in turn, should be valued. And he is right to call for “a
broad equality of condition that enables those who do not achieve great wealth or prestigious
positions to live lives of decency and dignity.”26 But Sandel leaves for other scholars—and
for workers themselves—the task of understanding past and present struggles over the dig-
nity of work and of elaborating what work with dignity could look like.

25
26

See, e.g., ELIZABETH ANDERSON, PRIVATE GOVERNMENT: HOW EMPLOYERS RULE OUR LIVES (AND WHY WE DON’T TALK
ABOUT IT) (2017); KATE ANDRIAS & ALEXANDER HERTEL-FERNANDEZ, ENDING AT-WILL EMPLOYMENT: A GUIDE FOR
JUST CAUSE REFORM (2021), https://rooseveltinstitute.org/wp-content/uploads/2021/01/RI_AtWill_Report_202101
.pdf.
SANDEL, supra note 2, at 214–21.
Id. at 224.

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