"It did not have to be this way, and there was a time when it was not," Adam Cohen writes in his introduction to “Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America.”
America could have top notch, racially integrated schools, a criminal justice system that hadn't ballooned to the world's largest by locking up generations of black and brown people, a political system that wasn't suffocating in money, and a legal system that valued individuals over big business. Today, though, the likelihood of implementing such a vision looks dim.
Cohen, in his new book, explores the Court's opinions over the last five decades and comes to a rueful conclusion: These decisions have greatly exacerbated America's gap between rich and poor. Cohen is a Harvard educated lawyer, a former member of The New York Times editorial board and senior editor for Time, and author of several books on American history and politics.
To review the basics — our Constitution establishes three co-equal branches of government: legislative (Senate and House of Representatives); executive (president, vice president and executive departments); and judiciary ("one supreme court" and lower courts as Congress deems fit to "ordain").
Cohen focuses on the judiciary's nine-member Supreme Court. He cites the personal histories of Supreme Court justices to explain how they vote, backing up his assertion that justices from modest economic backgrounds show more empathy for the 99 percent than those from privilege.
Cohen opens with the Warren Court (1953-1969), headed by Chief Justice Earl Warren. In addition to Brown v. Board of Education, which desegregated America's schools, the Warren Court issued numerous opinions that protected the poor and unemployed, attempted to outlaw race discrimination, injected fairness into criminal procedure, and strengthened voter protections.
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President Nixon, elected in 1968, ambitiously sought to change the Court. Readers may find that his deployment of both the Justice Department and the media in an all-out smear campaign to force out liberal Justice Abe Fortas, resonates with today's politics. Nixon was also ruthless in (unsuccessfully) trying to coerce Justice William Douglas' resignation, Cohen notes.
Cohen traces the Court's pivot away from protecting the rights of the poor and marginalized to 1969, when President Nixon appointed his first justice, Warren E. Burger. Burger tipped the Court to a conservative majority. Dandridge v. Williams, a 1970 opinion written by Dwight Eisenhower appointee Potter Stewart, "scion of the upper classes," heralded a change in welfare law that began narrowing and reversing earlier decisions protecting access to government assistance.
President Nixon got his lasting conservative majority; he appointed four Supreme Court justices whose influence is keenly felt today. Cohen unspools the Court's increasingly right wing holdings on education, campaign finance, democracy, workers, corporations and criminal justice. Many of these decisions have overturned statutory law and the Court's own precedents, he shows.
Cohen acknowledges that not all decisions break down along ideological lines. For example, in a blow to individuals, justices of mixed ideology limited punitive damages in cases of egregious corporate misconduct. And Buckley v. Valeo, decided in 1976, equated spending money on elections with free speech, even as it upheld aspects of campaign finance law.
Conservative justices seized the Buckley opening, using this equivalence between money and speech to greatly expand corporate and wealthy people's "rights" to influence politics through spending (Citizens United v. FEC, 2010).
With Justice John Roberts at the helm, the Supreme Court severely limited class actions (Dukes v. Wal-Mart, 2011, eviscerating the employment discrimination claims of 1.5 million women). Class actions had been a means for individuals with similar grievances and injuries to consolidate claims. Consolidation made it possible to show patterns of wrongdoing and to afford legal fees. Thus, while it may be difficult and unaffordable for one woman to show wage discrimination, 1.5 million womens' pay records can demonstrate a clear pattern.
The Court has bowed to the steady corporate drumbeat on the need for "tort reform," code for reducing corporate liability for defective and injurious products. "The Court's rulings have saved corporations many billions of dollars that otherwise would have gone to people they injured or cheated," Cohen writes. "Companies will sell more products with hidden defects." By limiting damages and foreclosing other options to sue for wrongdoing, the Court has awarded corporations vast power and protection. Cohen cites University of Colorado Law School Byron R. White Center director Suzette M. Malveaux's aptly named 2011 article — "How Goliath Won."
Similarly, Cohen shows, the Court has narrowed individuals' rights to be free from unreasonable search and seizure, awarded police more power, severely limited federal tools to address voter suppression, and much more. Read “Supreme Inequality” for a breathtaking, if depressing catalogue.
Cohen's book has a companion in David A. Kaplan's The Most Dangerous Branch. That book argues that the Court consolidated power by involving itself in every aspect of American life. The starkest example is Bush v. Gore that decided the 2000 presidential election. Bush v. Gore was done in haste, before Florida had time to complete its vote count. Kaplan believes the Court's activism both underscores and helps foster a weak and dysfunctional Congress. It creates a power imbalance among the three branches of government that threatens democracy. The Court's accrual of power raises disturbing questions, especially when limited government is a key tenet of conservatism.
Each of the five conservative justices on today's Supreme Court have strong ties to the Federalist Society. Founded in 1982, the Federalists are conservatives and libertarians who aim to "place a premium on individual liberty." How then, are we to reconcile this set of beliefs with a Court that consistently favors big money and corporations over individuals?
One could legitimately ask what is conservative about opening the floodgates to money in politics, eviscerating a longstanding statutory provision providing federal voter protections, supporting policies that increase mass incarceration, legislating women's bodies, and purposefully ignoring clear evidence of racial bias in sentencing and convictions. But it is not within Cohen's remit to address those paradoxes.
Cohen proves his argument that the Court's decisions have widened the wealth gap, diminished consumers' abilities to right wrongs, limited individuals' say in our democracy, and greatly empowered corporations. His objections are clear, but he does not offer a path forward other than the unstated: Since the Court fostered this concentration of corporate power and exacerbated the 1 percent's rise, it has the power to reverse itself. At the dawn of 2020, it is unimaginable that the Roberts Court would do so. On the contrary, this reviewer observes that conservative justices continue to actively seek cases that allow them to overturn decades of precedent favoring ordinary people.
Others have offered more concrete ideas. One nonprofit has put forth a proposal that would limit Supreme Court terms to 18 years with a stricter code of ethics, clearer and more effective rules on financial interests and recusal, more transparency, and predictability and fairness in the process of appointing justices.
Finally, in times when the Supreme Court is reliably pro-business and anti-consumer, pro-wealthy and anti-99 percent, lawyers and advocates pursuing other outcomes turn to state legislatures and state courts.
If history is any guide, the pendulum can swing the other way.
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