In Supreme Inequality, Adam Cohen argues that for half a century, America’s highest court has waged “an unrelenting war” on the poor while championing the rich. The Supreme Court, he laments, has consigned to legal helplessness those reduced to government welfare subsidies, even in the face of unjustified deprivations. Its “campaign finance decisions have expanded the rights of wealthy individuals and corporations to use their money to gain influence over government.” Rulings “on partisan gerrymandering, voter ID, the Voting Rights Act, and voter roll purges have diminished the ability of those with little money to use the one thing they have at their disposal to win influence over government: their votes.”
Cohen, a former New York Times editorial board member, proceeds to argue that “the Court’s decisions involving the rights of workers…have had a devastating impact on the economic standing of low- and middle-income Americans,” denying damage awards when workers are treated unfairly and leaving them bereft of the wage and benefit premiums that come with union membership. The court’s jurisprudence, he charges, is “a major reason that the poorest workers have not seen an increase in the minimum wage in a decade…have little recourse when their wages are stolen,” and suffer avoidably “high rates of death and injury on the job.” Moreover, while the Supreme Court shows too little solicitude for those charged with street crime, it displays excessive sympathy for white-collar malefactors, bending over backward to shield them from criminal liability and civil punitive damages.
Cohen points to Dandridge v. Williams (1970) as the case in which, after a brief period of progressive rulings during the 1960s, the Supreme Court began to turn against workers, people of color, and the poor. At issue in Dandridge was whether a state violated the 14th Amendment’s equal protection clause by capping welfare payments at $250 per month, regardless of a family’s size or need. Reversing the judgments of lower courts, the Supreme Court concluded that “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of [the federal judiciary].”
With subsequent rulings, the court’s aversion to judicial redistributionist interventions only deepened. In San Antonio Independent School District v. Rodriguez (1973), the court determined that there is no violation of federal constitutional law when children in poor districts, which are limited by constricted tax revenues, receive less funding for public schooling than those in more affluent ones. The plaintiffs in the case attended schools in San Antonio that had about 40 percent less funding than those in a wealthier district that, while nearby, was “a world away” in terms of opportunity, Cohen notes. This case, “more than any since Brown v. Board of Education, had the potential to transform the nation’s education system and create a more equal America.” Although a lower court sided with the plaintiffs, the Supreme Court reversed the ruling. At least where wealth is involved, Justice Lewis Powell declared, “the Equal Protection Clause does not require absolute equality or precisely equal advantages.”
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In cases on racial inequality, the court also put the brakes on judicial intervention. In Milliken v. Bradley (1974), the question centered on whether predominantly white suburbs could be enlisted to remedy racial discrimination in the predominantly Black public schools of Detroit by integrating students through busing. Lower courts thought such a remedy ought to be permissible; after all, the state as a whole was responsible for the unconstitutional infractions of its subdivisions, cities and suburbs alike. Four justices agreed. But the same five who decided Rodriguez ruled against the plaintiff, holding that because of the importance of local decision-making in public education, federal courts lacked the authority to order “innocent” white suburbs to contribute to desegregation in metropolitan areas.
In Buckley v. Valeo (1976), the court ruled on “a case that was as important to equality in elections,” Cohen tells us, “as [Rodriguez and Milliken] were to equality in education.” Striking down provisions that limited the amount of money individuals can spend supporting a candidate, the court invalidated major portions of the campaign finance laws enacted to address problems brought to light by the Watergate scandals. In the course of doing so, it formulated two key propositions. One was that spending money in support of candidates is tantamount to speaking out on their behalf, thus equating money with speech. The other was that when it comes to speech, imposing constraints on behalf of equal opportunity is impermissible: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
In subsequent decisions, the court further limited the government’s authority to regulate the influence of wealth in elections. Most significantly, in Citizens United v. Federal Election Commission (2010), it ruled that the McCain-Feingold campaign finance law overstepped constitutional bounds by prohibiting corporations and unions from expending funds from their treasuries on electioneering speech. Objecting to the court’s bestowal of First Amendment rights on corporations, Justice John Paul Stevens noted in dissent that firms have “no consciences, no beliefs, no feelings, no thoughts, no desires.” Corporate personhood is a useful legal fiction in certain contexts, he added, but corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” For the five-justice majority, however, what mattered was not the source of the “speech” (i.e., money) but its content. “Political speech,” Justice Anthony Kennedy intoned, “is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”
Elsewhere in election law, the Supreme Court repeatedly facilitated impediments to voting. In Crawford v. Marion County Election Board (2008), the court upheld an Indiana voter identification law in the absence of any showing that it was needed to thwart substantial voter fraud and even though it predictably and disproportionately burdened Black prospective voters and other groups that Republican lawmakers viewed as likely Democratic supporters. In Shelby County v. Holder (2013), the court invalidated a key provision of the Voting Rights Act that had effectively monitored and restrained jurisdictions with long records of racial disenfranchisement, while in Husted v.A. Philip Randolph Institute (2018), the court permitted Ohio to purge from its voter rolls people who had not voted in a number of elections and had been unresponsive to notices from boards of elections—an action undertaken with the obvious hope of getting rid of as many minority and other Democratic-leaning voters as possible.
Cohen’s catalog also includes cases in which the court displayed antipathy toward organized labor, indifference toward workers seeking recourse through anti-discrimination lawsuits, and solicitude for corporations facing the wrath of justifiably outraged juries. In Janus v. American Federation of State, County, and Municipal Employees (2018), the court held that it was unconstitutional for a state to require workers to pay a fee to unions to defray the costs associated with collective bargaining. The main justification for requiring the payment of such fees was to prevent free riding by workers who benefited from the union’s bargaining even if they were not members. But in Janus, according to the 5-4 majority in an opinion written by Justice Samuel Alito, the court held that forcing workers to pay such fees amounted to coercion, violating their First Amendment rights by compelling them to subsidize speech with which they disagreed and would not otherwise support.
In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the court added to its litany of anti-labor rulings, overturning a jury award of damages to a woman who had sued her employer for gender discrimination under Title VII of the 1964 Civil Rights Act. In Exxon Shipping Co. v. Baker (2008), the court added to its run of pro-business rulings by reducing a jury award of punitive damages for the catastrophic oil spill that followed the grounding of a supertanker on an Alaskan reef. The tanker’s captain, absent from the bridge when the grounding occurred, was found to have a high level of alcohol in his blood hours later. At trial, it was revealed that Exxon allowed him to command a supertanker even though the company knew of his record of alcohol abuse. A court of appeals assessed punitive damages of $2.5 billion, remitting a jury’s assessment of $5 billion. The Supreme Court, however, decided that even this amount was impermissibly excessive: It limited the punitive damages to a bit over $500 million.
Cohen notes that while the court protected corporations from what it saw as excessive penalization for grossly negligent conduct, it declined to protect people from excessive punishment. In Lockyer v. Andrade (2003), for example, the court upheld the application of California’s three-strikes law in a decision that condemned a man with prior convictions to a prison term of 50 years to life after he was caught stealing about $150 worth of videotapes from two stores. The four dissenting justices in the case remarked that if this sentence was not impermissibly disproportionate, “the principle has no meaning.” Yet the majority, in an opinion by Justice Sandra Day O’Connor, concluded that it was allowable or, in the court’s peculiar phrasing, “not objectively unreasonable.”
Supreme Inequality offers a damning indictment. With disciplined fury, Cohen patiently collates and dissects cases whose connective tissues are often overlooked, bringing to light a subject that should receive more attention than it does: the Supreme Court’s inequality jurisprudence. Many Americans repose more faith in the judiciary than in the other branches of the federal government. According to Gallup, 81 percent of those polled in 2020 expressed at least some confidence in the Supreme Court, as opposed to 62 percent in the presidency and 55 percent in Congress. Some mistakenly believe that the judiciary is the one branch of government in which the rules apply evenly to all, whether rich or poor. Part of the excitement that surrounds the legal misfortunes of the high and mighty—for instance, the celebrity parents caught up in the recent college admissions scandal—is a sublimated yearning for a forum in which class privileges do not matter. Citizens and judges alike recite the mantra that no one, no matter how wealthy or powerful or prestigious, is above the law. Cohen’s analysis puts the lie to that myth: Wealth or its absence do indeed make a difference in outcomes, even before the putatively majestic bar of justice.
Cohen writes in a lively, accessible fashion. He is attentive to the oft-neglected people behind the lawsuits named after them, he is careful to explain and humanize difficult legal abstractions, and he shows with sobering particularity the ramifications of the Supreme Court’s decisions. Anxious, it seems, to leaven his withering narrative with something more positive, he offers an overly cheery depiction of the court presided over by Earl Warren between 1953 (when the former California governor was nominated as chief justice by President Dwight Eisenhower) and 1969 (when Warren unhappily retired at the beginning of Richard Nixon’s presidency).
For Cohen, Warren’s arrival “launched a progressive legal revolution” with a “mission” of “uplifting the poor and the weak, and of building a more equal and inclusive society.” “The Warren Court,” he declares, “systematically looked for ways in which the poor were unfairly disadvantaged.” It was “a historical outlier,” he adds mournfully, one that lasted only briefly before the court was overrun with Nixon appointees who steered it to a resumption of “its traditional role in national life: protector of the rich and powerful.”
The reality of this interregnum was far more ambiguous. The Warren court’s most consequential, controversial, and esteemed decision was its 1954 ruling in Brown v. Board of Education, in which it invalidated racial segregation in public primary and secondary schooling. But the celebration of Brown has distorted the court’s role in racial desegregation. Pushed by the NAACP and other civil rights activists, the Justice Department under President Harry Truman and Eisenhower called for the elimination of racial segregation before Warren’s arrival on the court. And the armed forces ended segregation prior to the landmark ruling.
Cohen’s account, which remains the dominant narrative in many constitutional law courses in the country’s leading law schools, also obscures how the Brown ruling assuaged segregationist sentiment by assuring white supremacists that they would be allowed to desegregate “with all deliberate speed.” The court, moreover, refused to invalidate racial segregation in matrimony for 13 years after Brown. I mention this not to denigrate the Warren court; it did indeed take steps toward racial equality that warrant acknowledgment. But it was not the egalitarian Valhalla that Cohen depicts.
Supreme Inequality is also ensnared by the difficulty of distinguishing law from politics. Robert Dahl once observed that “as a political institution, the Court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it.” Like many journalists covering the court, however, Cohen sharply distinguishes it from the “political” branches of government. He complains that the court over which Chief Justice John Roberts presides “seems more like a political body than a legal one.” But the Supreme Court has always been political and is inescapably so, given, among other things, the way it is constituted.
When Cohen lambastes Citizens United, he begins by complaining that the court’s majority was “almost lawless, in its rush to overturn well-established law.” But would he object had the cases targeted for overruling been deplorables like Dred Scott v. Sandford (1857), Plessy v. Ferguson (1896), or Korematsu v. United States (1944)? The law is ever enmeshed in politics and in the service of one powerful interest or another.
We should become more realistic in our estimation of the Supreme Court, recognizing that the justices are politicians in robes, though they pursue their agendas somewhat differently from those in the White House and Congress. Teasing out the similarities and differences is a task that no one has thus far accomplished satisfactorily. But the political character of the Supreme Court is clear, notwithstanding its own and others’ strenuous efforts at obfuscation. Roberts chastised Donald Trump for referring to a judge by the president who nominated him. “We do not have Obama judges or Trump judges,” the chief justice declared. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” But Trump, awful as he is, gets the better of this dispute. There were Nixon judges; they bequeathed us Rodriguez and Milliken. Similarly, there are Trump judges. What they will bequeath us, only the future can tell, though their provenance hardly inspires confidence.
In Supreme Inequality, Cohen argues persuasively that the Republicans have managed the politics of the judiciary much more effectively than the Democrats. Throughout the book he returns to an obvious but important point: Supreme Court decisions are determined by the particular justices who sit on the court, which is determined in turn by the presidents who nominate them, the senators who ratify them, and the citizens who vote for both. This largely explains the trajectory of the Supreme Court since the 1960s. In 1967, liberal justices held a slim majority; then disaster struck. Earl Warren announced his retirement while Lyndon Johnson was still president, intending to ensure that a liberal would succeed him on the bench. But Johnson miscalculated: When he nominated Justice Abe Fortas to the position, the Senate rebelled, leaving it to the next president to nominate a new chief justice—and that president was Richard Nixon.
Over the next three years, Nixon got the chance to appoint four justices, creating a conservative majority that has held sway ever since. Not only have Republicans dominated the court through their appointive power, with their justices outnumbering the Democrats’ 14 to four among those seated between 1968 and 2020, but they have also dominated through their willingness to be more ideologically forthright than their Democratic adversaries. Republican presidents have straightforwardly declared, when nominating justices, that they mean to appoint conservatives. Democratic presidents, by contrast, have blurred the ideological complexion of their choices, as if there were something disreputable about being liberal.
To forge a better future, this will have to change. Democrats need to be more candid about their reasons for opposing Supreme Court nominees. They should not be at all reticent about voting to reject nominees on ideological grounds. Just because someone is smart and knowledgeable, hard-working and honorable does not mean that he or she should be elevated to the court. Any nominee who is likely to advance politically unacceptable policies ought to be opposed. That Antonin Scalia was confirmed with no dissenting votes (98-0) despite a record that gave ample cause for alarm reflects poorly on the senators who voted for him, especially the liberals among them (including Joe Biden, John Kerry, and Ted Kennedy).
Democrats also need to be much more intently focused on pushing the judiciary in a more progressive direction. That will require study, debate, and the identification and encouragement of prospective nominees. Liberals should have rolling lists of favorite candidates prepared, as conservatives already do, as well as a keen collective desire to refashion the judiciary so that it can contribute to the making of a more just America. Above all, they need to recognize and acknowledge that the Supreme Court is inescapably political. The key is to ensure that a judicial politics of equitable fairness prevails.
Randall KennedyRandall Kennedy is the Michael R. Klein Professor of Law at Harvard Law School and the author of the forthcoming Say It Loud!: On Race, Law, History, and Culture.