The Supreme Court’s Fifty-Year Battle for a More Unjust America
By Adam Cohen [February 21, 2020]
Many progressives hold these truths to be virtually self-evident. The United States Supreme Court has the hallowed role of protecting the most vulnerable in society. At a minimum, it does not engage in judicial activism to burden them further. And only now, when the court has shifted decisively to the right, is it in danger of relinquishing that function.
Adam Cohen’s “Supreme Inequality” shows that these beliefs utterly fail to capture the court’s treatment of the poor. For 50 years, he explains, it has exacerbated economic inequality through its aggressive jurisprudence.
To begin with the most sacred cow, Cohen, a former member of the New York Times editorial board and the author of several books, refutes the idea that the Supreme Court consistently looks out for vulnerable groups in society — what one fabled 1938 case called “discrete and insular minorities.” According to the theory set in motion in that case, the court’s isolation from representative politics is a virtue because a powerful minority at the top of society — the federal judiciary — can protect powerless minorities at the bottom against the prejudice of the masses.
During the Warren court era, which stretched from 1953 to 1969, Cohen suggests that the court did exactly that. It was even poised to recognize the indigent as a constitutionally protected group, like racial minorities, under the Equal Protection Clause.
Yet after it turned to the right in 1969, Cohen argues, the court also turned on the poor. Most of his book builds a brick-by-brick case for this thesis, with chapters on education, campaign finance, democracy, workers, corporations and criminal justice.
While at times ponderous, Cohen’s sweeping review is impressive and necessary. If asked for a Supreme Court case on poverty, I suspect most constitutional law scholars would cite the 1973 case of San Antonio School District v. Rodriguez, where the court declined to deem the poor a constitutionally protected class. Cohen agrees that Rodriguez had a huge effect. But he makes the point that myriad other decisions, while less widely known, did so as well. Rulings upholding strict voter identification laws and voter purges disproportionately affected the poor. So did limitations on class action lawsuits, because class actions allow plaintiffs suffering relatively small monetary losses to band together. And so did a decision declining to find a three-strikes law to be a “cruel and unusual punishment,” which left in place a 50-year prison sentence for a man who stole videotapes worth $153.54. By taking in the whole picture, Cohen connects seemingly unrelated dots to reveal a troubling pattern.
It might be said that these rulings merely reflect an appropriate modesty about the judicial role. The Warren court, after all, was a famously activist court. To this day, many commentators reflexively associate judicial activism with liberalism. Yet Cohen observes that the court has repeatedly engaged in judicial activism against the poor.
Consider the First Amendment. It is now familiar history that the 2010 Citizens United case struck down campaign finance reform laws on the ground that money is speech, thereby allowing corporations to spend unlimited funds on elections. Cohen argues that this case — and its progeny — were quintessential forms of judicial activism. Similarly, in a 2018 case, the court kneecapped public unions on the same money-is-speech premise — holding that nonmembers could not be forced to pay fees for negotiations that indirectly benefited them. In dissent, Justice Elena Kagan accused the majority of becoming “black-robed rulers overriding citizens’ choices.”
Cohen’s insight that the court has been an activist for income inequality is important. Commentators have widely excoriated income inequality as the scourge of our time (Cohen quotes the hedge fund manager Ray Dalio’s description of it as an “existential threat” to the nation). Yet many attribute income inequality to broad trends like advances in technology or globalization — and even commentators who point to the actions of governmental institutions rarely mention the court. After Cohen’s book, progressives should add the court’s jurisprudence to the list of causes for income inequality. What’s more, they should include income inequality on the list of negative consequences to be feared from future courts, especially now that Brett Kavanaugh has joined the court.
When Justice Kavanaugh replaced Justice Anthony Kennedy in 2018, he moved a five-member conservative majority even farther to the right, and progressives are rightly concerned that this shift imperils many past victories — from reproductive rights to affirmative action. But on poverty there haven’t been many victories in the first place, as Cohen demonstrates, since the judicial assault on the poor dates back decades.
“Supreme Inequality” begins with the Warren court to show that the court of that time was taking steps to protect the poor. But President Richard Nixon forged a new conservative majority by bluffing Justice Abe Fortas off the court with a smear campaign, causing a shift in the court’s balance that has persisted down to the present day with the Senate’s refusal to give Judge Merrick Garland, Barack Obama’s choice for the court, a hearing. Instead, Justice Neil Gorsuch was confirmed to that seat once Donald Trump became president. Because the numbers on the court are so small, swapping out one justice for another transforms the course of the country. Cohen concludes with the words of the poverty law activist Edward Sparer, who said that a court more sensitized to the needs of the poor “could have led to a different America.”
And this is where the book falters. After energizing the reader, it ends with lamentations rather than reforms. Contemporary proposals to limit the terms of the justices or to expand the number of seats on the court have direct relevance to the problems Cohen describes. But they receive no mention here.
Cohen does better when looking beyond the Supreme Court. He tantalizingly alludes to the role that state courts might play by invoking Justice Thurgood Marshall’s dissent in Rodriguez. As that dissent observed, state courts are permitted to build above the floor set by the federal Supreme Court, and some state constitutions have textual provisions that create more protections for low-income Americans. Yet Cohen gives us only a snapshot of this potential solution.
More deeply, Cohen never delivers a crisp blueprint of what an ideal jurisprudence as it relates to the poor might look like. As he acknowledges, the law offers two avenues for reform. The first takes a group-based approach, viewing the poor as a protected class that must be treated on equal terms with the rich. The second takes a rights-based approach, arguing that the government must protect certain fundamental rights (like the right to counsel in criminal proceedings) even to the point of subsidizing them.
Though Cohen favors these approaches, he does not explain how either would work in practice. If we take the group-based approach, how are “the poor” to be defined, and what would constitute equal treatment? If we take the rights-based approach, how do we determine which rights are so fundamental that they must be supported by the state?
As its title promises, “Supreme Inequality” makes an important contribution to our understanding of both the Supreme Court and the law of poverty. Cohen is an erudite and savvy observer. Yet for precisely that reason, one wishes he had pointed a clearer path to a less impoverished jurisprudence.
Kenji Yoshino is the Chief Justice Earl Warren professor of constitutional law at N.Y.U. School of Law.