By Adam Cohen
Penguin Press, New York, 2020
The Supreme Court is not your ally.
The Supreme Court does not protect the weak, the poor, or the downtrodden.
The Supreme Court will not save us from Donald Trump.
Those hard truths struck me as I read Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America by Adam Cohen. Cohen proves beyond any reasonable doubt that the Court’s decisions over the last half century have favored the wealthy, the powerful and the white, dramatically increasing inequality in the United States.
Adam Cohen is a lawyer, journalist and author. He graduated from Harvard Law School and worked at the Southern Poverty Law Center and the American Civil Liberties Union. He’s been a writer for Time magazine and an editor at The New York Times. Cohen is the author of five books. Supreme Inequality is his latest.
The “Nixon Court”
On October 5, 1953, Earl Warren, then Governor of California, was sworn in as chief justice of the US Supreme Court. Over the next fifteen years, the “Warren Court” as it came to be called, was responsible for some of the most progressive legal decisions in US history including Brown v. Board of Education which ended racial segregation in American schools.
That progressive era ended abruptly in 1969 when Richard Nixon became President. In his first three years in office, Nixon appointed four judges to the Supreme Court, including a new chief justice, Warren Burger. Nixon’s appointments moved the Court sharply to the right making it far more conservative.
One of Cohen’s main themes in Supreme Inequality is that we are still living under the “Nixon Court” today. All the chief justices since Warren – Burger, William Rehnquist and John Roberts – have been conservative. Conservatives have held a 5-4 majority on the Court for the last fifty years. Cohen argues that the conservative justices have used their majority to transform American society into one that is more unequal and unjust.
i When you preside over one of the lower courts, like a district court or even a federal appeals court, you’re called a judge. When you get your appointment to the Supreme Court, you become a justice.
Structure of the Book
The first chapter of Supreme Inequality takes a detailed look at the progressive judgements of the Warren Court, laying out how they increased legal protections for the poor and the under-represented. In each of the remaining seven chapters Cohen examines a particular area of law including education, workers’ rights, criminal justice and campaign finance. He paints a disturbing picture of how the post-Warren courts changed direction across a wide range of legal issues leading to increased economic and political inequality in America.
In each chapter, Cohen walks us through a sequence of important cases showing how the Court’s rulings have developed over time. Cohen explains each case clearly and simply, presenting the issues at stake, the history and events of the case, and the key legal arguments on both sides. He analyzes the Court’s decision and then highlights the consequences; how it influenced future decisions and how it affected people’s lives. Actually, that’s a consistent theme running throughout the book – how the Court’s decisions affect the lives of ordinary people. The justices are not just deciding abstract legal questions. Every decision affects real people, often millions of us, for years and decades to come.
I’m going to summarize just one of these chapters because the topic is so critical right now.
Elections and Voting
In a damning chapter titled Democracy, Cohen argues persuasively that the Supreme Court’s decisions on elections and voting since 2000 have made it more difficult for Americans to vote and made our votes count less equally.
In December 2000, the Court decided the outcome of the 2000 US presidential election. Cohen recaps the history of that election and the infamous Supreme Court decision in Bush v. Gore. The election results were very close that year. Whoever won the State of Florida would win the presidency. Voting in Florida was a mess, with voting irregularities and malfunctioning voting machines in several counties around the state. In early December, with Bush leading by about five hundred votes, the Florida State Supreme Court ordered a statewide manual recount of about nine thousand ballots which had not been properly marked or counted by Florida’s faulty voting machines. Bush appealed to the Supreme Court. Two days later the Court, splitting 5-4 on partisan lines, ordered a halt to the recount thereby making Bush president.
The decision was widely criticized and Cohen reviews many of the reasons why. The strongest one in my opinion is that the Court decided whose ballots would be counted and whose would not. The Court disenfranchised thousands of voters when it halted the Florida recount.
In case after case, Cohen details how the Court has upheld voter id laws that make it more difficult to register to vote, and voter roll purges that make it easier for government officials to delete eligible voters – tens of thousands of us – from voter rolls. These laws are supposedly enacted to prevent voter fraud, such as people voting twice, or people casting the ballots of dead voters, or people voting in places where they don’t live. But despite what Donald Trump says, there is zero evidence of widespread voter fraud. It hardly ever happens. Cohen shows that what these laws actually do is disproportionately disenfranchise the poor, students, and people of color. And that of course is the real purpose of these laws.
Cohen also examines the legal decisions around partisan redistricting. After the census is taken every ten years, State legislatures around the country redraw the boundaries of electoral districts to reflect changes in population size and distribution. Partisan redistricting, also known as gerrymandering, occurs when one political party draws the district boundaries for its own advantage, ensuring they can win a disproportionate number of seats. Under partisan redistricting, politicians choose their voters and not the other way around. This is one reason why incumbents are so hard to defeat in the US.
Gerrymandering is a bipartisan sin; both Democratic and Republican governments do it.
Cohen tells us the Supreme Court had never taken a firm stand against partisan redistricting preferring to leave these disputes to elected politicians to resolve. Finally in a 2018 case called Rucho v. Common Cause the Supreme Court decided 5-4 that partisan redistricting is “nonjusticiable”, which means it is not a question the courts can decide. (This is the legal equivalent of Gödel’s Incompleteness Theorem: you can pass a law but we can’t tell you whether it is valid or not.)
In other words, the majority ducked the question. In doing so, they made it virtually impossible for any future lawsuits about gerrymandering to succeed. And that means that governing elites have been given a green light to manipulate district boundaries with impunity.
Finally, Cohen describes how in 2012 the Supreme Court gutted the Voting Rights Act.
The original Voting Rights Act was passed in 1965 at the height of the civil rights movement, and signed into law by President Lyndon Johnson with Dr. Martin Luther King Jr. looking on. The Act was designed to prevent intimidation and other tactics from being used to prevent Blacks from registering and voting. Section 5 of the Act required certain state and local governments to get approval, in advance, from the Justice Department or a federal court for any potentially discriminatory changes to their voting laws or procedures. This was known as the “preclearance” requirement. Section 4 set out a formula that determined which parts of the country would be subject to preclearance. It covered most of the South and a few other jurisdictions.
In 2012, Shelby County, Alabama sued the Justice Department, arguing that preclearance was unconstitutional. The Court agreed. In Shelby County v. Holder the Court struck down Section 4 of the Act by another 5-4 partisan split. With no formula for determining where preclearance applied, the major provisions of the Voting Rights Act collapsed.
i Chief Justice John Roberts, who wrote the majority decision in Shelby County has a long history of opposition to the Voting Rights Act.
Cohen takes us through this case in detail and dissects, eviscerates really, the majority’s reasoning, which among other things claimed that times had changed and voter suppression was no longer a problem. Predictably, the decision opened the floodgates to a new wave of voter suppression laws, rules and procedural changes, mostly in southern Republican-controlled states.
The net impact of all these cases has been to weaken American democracy; making it more difficult for people to register to vote, to cast their ballots, to have their votes counted and to have them count equally.
Most of these cases have been decided by 5-4 votes along ideological lines. Cohen argues that while the Court could have taken a different approach,
“Instead the Court has taken an approach to election law that defers to the decisions of elites about which voters should be allowed to participate in democracy and whose votes should count.” [p. 192]
Why have conservatives dominated the Supreme Court for so long? Cohen maintains it’s because Republicans want it more than Democrats. Republican presidential candidates routinely pledge to appoint only conservative judges to the Court. Donald Trump went so far as to publish his list of potential nominees during the 2016 campaign. Democrats have not done this.
Republicans have also been more strategic about keeping control of the Court. Cohen describes how Nixon forced liberal Justice Abe Fortus off the bench in 1969, opening the way for his conservative makeover of the Court. And the Trump Administration enticed Justice Anthony Kennedy, the “swing vote” on the Court, to retire, appointing the reliably conservative Brett Kavanaugh to succeed him.
By contrast, Justice Ruth Bader Ginsburg did not retire early in President Obama’s term when she could have been replaced by a younger liberal judge.
Cohen concludes the book with observations about the role and long-term impact of the Supreme Court.
“The Supreme Court is more than a legal tribunal ruling on disputes between parties—it is also an architect. The Court’s interpretations of the Constitution and other laws become blueprints for the nation, helping to determine what form it will take and how it will continue to rise. For the past half century, the Court has been drawing up plans for a more economically unequal nation, and that is the America that is now being built.” [p. 317]
It could have been so much different, Cohen argues, if the progressive views of the Warren Court had continued to hold sway. A Court in the Warren tradition would have laid down different blueprints.
“That different set of blueprints would have built a different society. For the past five decades, all families could have been lifted above the poverty line. All children could have attended schools that were adequately funded and racially integrated. There could have been elections that were decided by the most persuasive arguments to the electorate, not by special-interest money, and a government that put the public’s interest ahead of the billionaires’. There could have been workplaces with less discrimination and more unions, and prisons with fewer inmates.“ [p. 318]
We could have had a much different America.
It’s hard not to be outraged after reading Supreme Inequality. Cohen argues clearly and passionately for a more progressive, equal and just America, and shows how the Court has thwarted that vision for the last fifty years. There have been a few exceptions, such as abortion rights and same sex marriage, but Cohen warns that even those decisions shouldn’t be taken as carved in stone.
Cohen does a great job showing how the Court’s thinking evolves along a line of cases, sometimes stretching back decades. In the process we see the strategic – dare I say, political? – way the judges work to advance their beliefs. They’ll write comments or footnotes in one case that they refer to years later in another. Most of the time they take an incremental approach, chipping away at previously decided cases, limiting their scope or narrowing their applicability. They wait for particularly favorable cases to come along before taking bigger, bolder steps. It’s slow motion chess. Or a slow motion train wreck depending on your point of view.
I have two concerns with the book. The first is that Supreme Inequality contains a lot of hypotheticals. If the Court had made Al Gore president in 2000 and if Gore had been reelected in 2004 then he would have appointed a liberal Chief Justice to succeed William Rehnquist in 2005. There are many examples like this throughout the book. They paint an enticing picture of an alternate America, but it’s really impossible to predict the full chain of consequence that might follow any of these hypothetical events. If Gore had won in 2000 and 2004, maybe a Republican would have won in 2008 and not Barack Obama, in which case Justices Kagan and Sotomayor would not have been appointed to the Court.
Similarly, if the Court had made more progressive decisions on labor or employment law, maybe there would have been a conservative backlash in subsequent elections resulting in more inequitable legislation getting passed.
Nonetheless, Cohen’s fundamental argument stands: the decisions of the Court follow a consistent long-term pattern dictated by the ideology of the majority of the justices. The justices are not just umpires “calling balls and strikes” as John Roberts claimed during his Senate confirmation hearings. They’re human beings just like the rest of us. They come to the Court with experiences, opinions and biases. They are not neutral.
That leads to my second concern. Supreme Inequality focuses on the last fifty years of Supreme Court decisions. But there is plenty of evidence that the Court has been leaning conservative for a long, long time. After all the Supreme Court has quite a checkered history when it comes to upholding civil rights. In 1857, the Court ruled in the Dredd Scott case that people of African descent, free or enslaved, were not US citizens and had no rights to sue in US courts. In 1896, the Court upheld racial segregation laws in Plessy v. Ferguson. In 1944, in Korematsu v. United States, the Court upheld the exclusion of Japanese Americans from areas of the US west coast during World War II. And in case you might think those are just extreme examples of the Court’s behavior from decades past, the Court upheld the Muslim travel ban in Trump v. Hawaii in 2018. (You can read my review of that case here.)
I understand Adam Cohen is trying to draw a sharp distinction between the progressive rights-oriented Warren Court and all the Courts that followed. I think it’s likely his argument applies to the Courts that preceded Warren too.
* * *
OK, this has been a very long review, but the book has got me thinking about the future of the Supreme Court. I want to add one more thought.
Justice Ruth Bader Ginsburg is 86 years old and battling cancer. Justice Stephen Breyer in 82. The next US president will most likely appoint their successors. If Trump is re-elected in November, he will appoint conservative justices and there will be a 7-2 conservative majority on the Court.
Do you think the US needs to address the problems of racial and economic inequality? What about universal health care? Do you care about preserving abortion rights? Do you support reasonable gun control laws? Want an end to qualified immunity for police officers? Do you want to preserve and extend minority rights? How about a decent and compassionate immigration and refugee system? Should there be limits on the power of the Executive Branch?
None of this will happen with a 7-2 Court.
If you care about any of these things, please vote this November!
Thanks so much for reading.
Republicans have a strong message on the courts. Democrats need one too.
Washington Post opinion by Melissa Murray, Professor of Law at NYU School of Law
August 20, 2020
Strict Scrutiny Podcast
“A podcast by three women about the Supreme Court and the legal culture that surrounds it.” Adam Cohen has been a guest on this podcast.