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This episode was recorded on February 27, 2020.
Adam Cohen: When you look at the inequality in our country and the fact that the middle class is hollowing out … a lot of this is because of the Supreme Court.
Michael Waldman: That’s journalist Adam Cohen, author of the new book Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. Cohen argues that the Court has been a major driver of income inequality in the United States since the Nixon era and it continues to bend over backward for corporations today.
Adam Cohen: The Court is about your paycheck. It's a kitchen table issue. And we're not hearing anyone talk about it, and they should be.
Michael Waldman: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU School of Law. I’m Michael Waldman. This program was recorded in February 2020.
Adam Cohen spoke with Melissa Murray, a professor of law at NYU School of Law and a member of the Brennan Center board.
DISSOLVE TO CONVERSATION
Adam Cohen: I think it’s part of our problem … is not that we're just an increasingly unequal society, but people don't realize how bad it is. So, why economic inequality? We hear a lot of talk about it. We read in the press. People talk about, well, globalization is making us more unequal, automation, policies from Congress and the President. In the book, I say one thing that we're not talking about enough is the extreme role that the Supreme Court has played in this inequality. It just doesn't come up in the conversation, but I think it's a major driver. And when we talk about the Supreme Court being a driver of inequality, we need to go back to 1969, and that's why the book is the last 50 years of the Supreme Court. Something very dramatic happened then. There was a liberal Court — the Warren Court — when Nixon was elected. And Nixon ran on a campaign promise to change the Court, and he was unbelievably effective in doing that.
Part of the reason was that he was able to replace Warren himself, who was about to retire, with a conservative Chief Justice, Warren Burger. And then the second critical part of this … There was one justice, Abe Fortas, who Nixon succeeds in driving off the Court through really a lot of false accusations, exaggeration of a small ethical lapse, threatening to put Fortas and his wife in jail. Fortas, who was then the most liberal member of the Court, gives up his seat, and Nixon's able to replace him. And that allows him ultimately four justices in three years and we end up with a totally different Court.
Now that is the same conservative Court we have today, essentially — a conservative chief justice, which there’s been for the last 50 years, a conservative majority. Different justices have come and gone, but that conservative Court is still with us today. So why do I say that that conservative Court is a major reason for the inequality in our country today? Well, the World Inequality Report of 2018 — which is a report put out by leading economists — in their discussion of why inequality has been rising in the United States, they say there have been two main drivers, educational inequality and unprogressive taxation.
Well, each of those two main drivers is absolutely attributable to the Court of the last 50 years. How is that? Well, so this is just one little snapshot of the inequality that we have in just one state. The Washington Post did this story a few years ago about funding inequality in Pennsylvania, and the highest spending district in Pennsylvania spends more than three times as much as the lowest spending district, which is in coal country. Why does this happen — and not just in Pennsylvania, but in states around the country? Well, because of two important rulings from this Nixon Court that was created 1969 and '70. Rodriguez v. San Antonio Independent School Board — the Court had an opportunity to say that the Equal Protection Clause required equal funding across school districts, and they came within one vote, five-to-four, of doing it.
The math is very clear. If Abe Fortas had remained on the Court, it would have been five-to-four the other way, and we would have equalized school funding. And then the second case, Milliken v. Bradley, said that you don't need to integrate schools across urban/suburban lines. So Detroit, which had a heavily minority population … The NAACP sued to try to get the kids there an integrated education, and the Court came within one vote of saying, "Yes, you could have bussing across urban/suburban lines. To integrate, you have to have it because it's the only way to integrate places like Detroit."
But again, because Fortas was not on the Court, the conservatives had one more vote than the liberals, and that also was rejected. So those two cases are the main reason we have such educational inequality. Now, the taxes part of the inequality — the tax rate on the rich is going down. Why is that? Well, it's not because the American public doesn't want to tax the rich more. In fact, the American public, voters very much do want to raise taxes on the rich. Polls show that all the time. The problem is that big contributors do not.
There was a time when we thought possibly we could have real campaign finance laws, and after the Watergate scandal, Congress passed a very good law. The Supreme Court struck it down in 1976 — struck down an important part of it — and came up with that incredible formulation that money equals speech, which some people say is the original sin in constitutional law today. So, because of that — and as we know, there've been case after case where they've opened the floodgates further, leading eventually to Citizens United, and corporations can spend … Because of that, the wealthy have more control than ever before over our politics, and one of the things they wanted was to not have progressive taxation.
There are many other areas where the Court has also promoted inequality — the way they've ruled about unions, employment discrimination, corporate law, criminal law rulings that have led to mass incarceration. It’s really important to remember this is what happened, but it isn't what had to happen, right? This was a politically constructed Court established by Nixon. He was able to steal one seat, Fortas's seat, which was a while ago now. But we all remember more recently, when the Republicans stole another seat — Merrick Garland’s seat. They were bookends. One theft of a seat created the Conservative Court; 50 years later, another theft of a seat from Merrick Garland maintained the conservative majority.
So it could have all been very different. We might have had Rodriguez equalizing school funding. We might have had Milliken actually creating integrated education. If this all been different, it could have been a different America.
Melissa Murray: You start with the Warren Court, and you take it as an article of faith that the Warren Court was a high watermark in the United States and certainly, in the legal culture of the United States, a high watermark for progressivism. Have you perhaps overstated the case for the Warren Court?
Adam Cohen: You might say overstated. You might say that I graded on a very easy curve, right? I had just finished writing this book, Buck vs. Bell, about this 1927 case where the Supreme Court not only allowed this poor young woman, Carrie Buck, to be sterilized, but really actively embraced the eugenics movement. It's amazing to see just how regularly the Court was not only wrong, but horrible. I mean, Dred Scott sues and they say, "You don't have a right to sue as a black man for your freedom." And I had written a book about the New Deal, and FDR comes into Washington and the country is near collapse, 25 percent unemployment.
FDR comes up with a New Deal program. The Supreme Court begins striking down the New Deal. So I would say that after all of that, yes, the Warren Court didn't do some of the things we might have wanted, but it was such a breath of fresh air, and it did a lot of good.
Melissa Murray: I think you were exactly right, that the Court has always been pro-business. If you think about the Gilded Age Court, the trust busting Court — like, they were not interested in antitrust legislation. They were actually actively invalidating it. The Warren Court is a dip and what is framed on either side as a pro-business Court.
But I want to push back on the hagiographic portrayal of the Warren Court as being perhaps more progressive than ever. So, here are a couple of issues or cases decided by the Warren Court. So Hoyt versus Florida, 1961, which upheld a state law that allowed women to be exempt from jury service and in upholding that law, the Court says that women are needed for the life of the home and domesticity and don't need the additional burden of civic participation.
Equally problematic is a case called Braunfeld versus Brown in 1961, where the Court allows for blue laws to be upheld, even though they have a disparate impact on individuals who observe a Saturday and Sunday sabbath. And then in Lassiter versus Northampton County, a 1959 case, it upholds the constitutionality of voter literacy tests, and that's only repealed through the congressional action of the Voting Rights Act of 1964. So, are we making too much of the Warren Court? They did lots of great things, but they don't actually spell out why Brown versus Board of Education is decided the way it does; it doesn't give us a very clear answer for why separate but equal is a problem. It does great things. But is it as progressive as we've given it credit for?
Adam Cohen: For Warren Court purists like me, there were really two Warren Courts, right? There's a different Warren Court in 1962, right? Kennedy gets two appointments in 1962. One of them White — who ends up being somewhat disappointing — but Goldberg does shift the Court over, right? There are people who say, when you really want to talk about the essence of the Warren Court, you really want to talk about post '62. People do say that it's that post '62 Court that’s more important.
No, you're right. And you could point to the Terry decision, right? And that's very much the late Warren Court. They really uphold the idea of stop and frisk, right? So, no, they're not ideal.
And a lot of their rulings about the poor, which I'm very excited about, because as a former poverty lawyer, we really weren't winning much of anything. So any victory is nice. But yes, I was waiting for them to declare the poor as a suspect class and to really get to work.
Frank Michelman wrote a very famous introduction to the Harvard Law Review in 1969. He argued that there's a right to subsistence under the Constitution — that there might be an obligation of the government under the Constitution to give you welfare. So, there were all those things they could have done. If I were a tougher grader, I would give them yes, some kind of a B, maybe.
Melissa Murray:But in the great scheme of things a, B, is pretty good, because the Court’s kind of been an F.
Adam Cohen: The Court has been an F. But you're right. I like to think of them as an A only because as I look at everything else the Court is done in its history — just unfathomable now that the Court said before any locality in the country is going to remove anyone from welfare, they have a right to a formal hearing under the Due Process Clause. That's a big, big deal.
Melissa Murray: You're right. They’re all of these other victories and they're elusive and ephemeral because they go away very quickly. And I just want to be clear: I really do love the book. It's organized across a number of different substantive areas — workers, democracy, criminal justice, education, corporations. And across all of those areas, you explain in incredible detail how the Court, over time, has really shifted to the Right and toward a posture that is much more pro-business and less concerned with the rights and positions of individuals and especially the poor. One of the places where I was sort of left wanting more, is like … I couldn’t understand, especially given your prior work, why isn’t reproductive rights part of this story? Because that’s an area where the Court’s rightwards shift really has had a profound impact on the poor, and poor women particularly.
Adam Cohen: Absolutely, and gender in general is not as much a part of it as it could be. Some of this was just a matter of trying to constrain the subject, and as you know it's such an enormous subject — 50 years in the Court. And I was trying to hew very closely to economics, but you're right, that matters a lot. Also, the gay rights decisions are also very important. All of these decisions that liberate people, liberate them economically, as well.
Melissa Murray: So to the gay rights point, you are very down on the Roberts Court. But one high point for the Roberts Court certainly should be 2015’s Obergefell versus Hodges, which legalizes same sex marriage across the country. Justice Kennedy really loves marriage, and he makes it very clear in this opinion. He wants someone to be able to come find him if he falls in the middle of the night — like that's basically the gist of the opinion. But you might argue that the veneration of marriage at a time when marriage rates are declining among most groups except the upper classes is actually a decision that gives rise to even more income inequality.
And, like, marriage is such a big part of the Court's jurisprudence it might actually feed your story.
Adam Cohen: You're absolutely right. And you know, there are so many other roads I could have gone down. That's absolutely one I should have. But I was much more, I'd say, bread-and-butter about it. Like in the employment context, I talked about Maetta Vance and Lily Ledbetter and Jack Gross. These stories are so horrible, right, that the Court five-to-four rejects people who've been horribly discriminated against in the most callous way and also make up the law as they do it. So I guess I wasn't really looking for things to give them credit for.
It's just a crime that people don't know about Maetta Vance. She was the only African American woman in the catering department at Ball State University. The woman who supervised her every day used words like sambo and slapped her in the face, and another white woman boasted about her family in the Ku Klux Klan, and they were just horrible to her. She sues Ball State and it gets up to the Supreme Court and they say, "That woman, the woman who slapped you and ‘sambo’ and all that … She's not really your supervisor. Because she can't hire and fire, she's not a supervisor."
And poor Jack Gross, also, who was absolutely a victim of age discrimination — he got a jury award, and they just come along and they say, "You know, the standard we use in every, all those other forms of discrimination, we're just going to raise the standard for age discrimination.” I just feel like I wanted to ring a bell and tell people, “Do you realize what your Court is doing?” And no one's in the streets protesting.
Melissa Murray: So, we're seeing this right now before the Court, like sort of ratcheting up of what civil rights claimants have to prove.
Adam Cohen: Totally. And I think we know when we read the section of the newspaper about the Supreme Court, you have to prepare yourself for what's today's horror.
Melissa Murray: It's not necessarily even substantive decisions that are problematic, but decisions that actually limit access to the Court. You talk about the rise of this pro-arbitration movement, which actually starts out as being a pro-worker movement but then gets co-opted and manipulated into something that is really pro-business and pro-corporate interest. And the Court embraces it wholeheartedly in that form.
Adam Cohen: Right now, they are writing mandatory arbitration clauses into almost everything to the point that pretty soon, probably no one will be able to sue their employer ever, no matter what they do to them, because they'll be forced into arbitration. No one will ever be able to sue their bank, the store that they buy things from.
Melissa Murray: So limiting the option for aggregate litigation, forcing people into arbitration as opposed to actual adjudication … You mention Italian Colors, which is a Court case; I think it's from 2014. Is that right?
So, Italian Colors is a restaurant in Oakland that I used to frequent —
Adam Cohen: Oh, is that right?
— when I lived in Berkeley. And what was sort of interesting about it is the conservative legal movement is always talking about individual liberty. Interestingly, five members of the Court are identified as members of the Federalist Society, which, if you don't know, is a debating society for conservatives and libertarians. And one of their professed credos is this commitment to individual liberty. What could be more in keeping with the idea of individual liberty than this mom-and-pop Italian restaurant in North Oakland that the Court completely shuts out in favor of American Express?
Adam Cohen: It's why I really ultimately feel a lot of what the Court is really about is just siding with the powerful against the weak. American Express is a bigger corporation than the little restaurant, and they like the big corporation. They seem to always like the big and powerful.
Melissa Murray: Let's talk about the inflection points in the book. One such moment is Bush v. Gore, the 2000 election case, which gives the presidency to George W. Bush and, in doing so, also hands George W. Bush two opportunities to shape the Court, one of which occurs in 2005 when Chief Justice Rehnquist dies, and he is replaced by Chief Justice Roberts. And then when O'Connor retires from the Court, and she is replaced by Alito. Rehnquist for Roberts is maybe an exact match. O'Connor for Alito really drives the Court to the Right. What other inflection points do you see in our current moment?
Adam Cohen: Look at Anthony Kennedy's decision to step down. He stepped down at the absolute last moment when he could be assured that a Republican president would have a Republican Senate who would confirm a successor. He does not appear to be in bad health. So that was a very conscious passing of the baton.
Almost all the conservative justices have managed to hand their seats off in the last 50 years to other conservatives. The liberals never do it.
Ruth Bader Ginsburg, but also Steve Breyer — they could have stepped down at the end of the Obama administration and be replaced. So, these things add up, and these are reasons why that five–four majority has stayed in place. And you mentioned Bush versus Gore, and people look at that case, and they say, “Boy, the conservatives all voted for the person they wanted to be president. They wanted Bush because they're Republicans themselves." That's true.
But the other thing they were voting for is they saved the conservative Court, right? If Gore had been elected in 2000, he would have immediately started appointed liberal justices. That conservative Court would be over. So for people like O'Connor and Rehnquist, they loved the conservative Court. That was their life. And they were voting to keep it by putting Bush in office.
Melissa Murray: What do you make of some of these proposals about changing the composition of the Court — adding additional justices, imposing term limits, even changing the composition of the Senate to allow for DC to have two senators, Puerto Rico to have two senators so that you might be able to change the nature of judicial appointments?
Adam Cohen: My general reaction is that I'm not so interested in them in large part because I don't think they're going to happen. A lot of them require a constitutional amendment; some of them don't. We could expand the size of the Court by legislation, but it's just not going to happen, right.
Melissa Murray: It happened in the 1930s. This is how Franklin Roosevelt got The New Deal.
Adam Cohen: Well, he threatened … you’re right. He threatened to pack the Court but it was very controversial and people hated him for doing it ... Yes, it can —
Melissa Murray: And now they love him.
Adam Cohen: They do, they do. It can occasionally work, but I guess where I was going to with this is if we had an FDR in office right now, maybe he could do that kind of thing.
I think it's a distraction. I don't think we're going to get these deus ex machine, some amazing new way we're going to organize the Court.
Melissa Murray: Is it more important to win the presidency than it is to win the Senate, if you care about the Court?
Adam Cohen: I like having a president.
They're obviously both important, and it should be part of the presidential candidates’ stump speeches. It should be raised in every Senate election. This matters to people.
When you look at the inequality in our country and the fact that the is hollowing out, when we read these articles about how 40 percent of the country couldn't come up with $400 in an emergency, a lot of this is because of the Supreme Court. The Court is about your paycheck.
Melissa Murray: The Court as a kitchen table issue.
Adam Cohen: It's a kitchen table issue, right. And we're not hearing anyone talk about that, and they should be.
Melissa Murray: So is part of that just because the Court is almost shrouded from the public in this kind of veil of mystery? Is that part of the gap in making the case to the public? Like most people don't know what the Court is doing.
Adam Cohen: I think that's right. Look at what this Court is doing to ordinary working people.
Melissa Murray: That's also part of the work of the Court. If you read these Supreme Court opinions, even where they are anchored by a record that is just filled with this kind of human-interest story, the Court drains it to this bloodless disposition. You might say that the opinions — if they are public documents to be consumed — they are actually drained of any of the elements that would make them interesting to the public.
Adam Cohen: That's absolutely right. The people and their stories disappear.
Melissa Murray: Okay, let me take a step back. You might imagine two ways that we could address income inequality or economic inequality through constitutional law. One might be a kind of equal protection way, which is to consider the poor a vulnerable group for purposes of constitutional law and to provide for group-based remediation. Another way might be to think of this along the lines of substantive due process, and that there is a certain right to a bare level of subsistence — the kind of thing that Frank Michelman was talking about in his Harvard foreword. Which of these two paths would you favor?
Adam Cohen: Ultimately, although I see a lot of beauty in what Frank Michelman was saying, I don't ultimately think it was a pragmatic approach. And I ended up, as I was working on the book, being more attracted to the idea that the Warren Court should have granted poor people status as a suspect class and went about it that way. I don't think America is ready for a constitutional right to subsistence.
Melissa Murray: How would we draw the parameters of a suspect class that is based on indigence or poverty?
Adam Cohen: It was really during the '60s that we began to even think of poor people as a class. But yeah, it's always going to be fuzzy around the edges. And a lot of this comes up with setting the poverty line, right — what is the poverty line? Who is poor? That's not an easily answered question. Then the other part of it, though, that's difficult is: How do you say that a law unconstitutionally burdens the poor? Because almost every law burdens the poor, right?
What I would have liked would be for the Court to go down that road and do it the way the Court does it, case by case, and say, “This law goes too far.” Peter Edelman — who is a hero in the poverty rights movement — he says, "Well, one of the things we could have done if we'd recognize the poor as a suspect class was go after the inequality and welfare laws,” right? This is a federal program. Isn't that a violation of equal protection that people in some states are at least getting some welfare and people in other states are not? There are ways we could have used this suspect class that we don't know exactly how it would have played out, but it would have made things a lot better.
Melissa Murray: The fact that race is recognized as a suspect class is what makes affirmative action so imperiled today. The fact that the Court has to review our race classifications — including affirmative action programs — under strict scrutiny is what makes affirmative action problematic right now, or makes it risky. It might actually be easier to not denominate the poor a suspect class if you wanted to create affirmative action programs, because then the government would only have to show that there was a rational basis for having the program and that would be incredibly easy to establish.
Adam Cohen: I think your instinct that it would be good if we started just doing more for the poor is a great one, because if you look at the history of when the Court started ruling for the poor, there was a poor people's movement in the '60s that was very powerful. There was a welfare rights movement that was having protests around the country. Those movements, those protests, put pressure on the Court.
Melissa Murray: I think a sort of upsurgence in what might be a modern poor people's movement is in reproductive justice. But interestingly, what we've seen instead is the Court kind of co-opt — or members of the Court co-opt — the reproductive justice vernacular for its own purposes. There's also sort of the risk of having a poor people's movement or a reproductive justice movement co-opted by the Court and have liberal tropes used for conservative aims.
Melissa Murray: The part of the book where you talk about the aftermath of Citizens United is actually chilling — like the idea of House representatives, Senators on both sides of the aisle going down to these SCIFs, call centers, where they just dial for dollars for hours and hours and hours, and they have these quotas that are put in place by the parties themselves. And so, it's dramatically changed the nature of the work of Congress and also the interests that are able to attract Congress's attention.
Adam Cohen: Right. It's so hidden from view. As you say, there are these private call centers right near Capitol Hill and both parties have them. And members of Congress are supposed to go there for hours and hours and hours every week. And they're talking to rich people all day long hearing what rich people want. Does that affect them? Absolutely.
Melissa Murray: I think underway on the Far Left — or it's portrayed as a far left effort — to really diversify the Court, diversify not just the Supreme Court, but the lower federal Courts, as well, by sort of expanding the nominees — where they come from, the schools they come from, the kind of work experiences they've had, more union lawyers, more public defenders, maybe less prosecutors, maybe less big law partners. Do you think that will come closer to getting us to a Court that is more in line with the progressivism of the Warren Court and less the pro-business Court that we've seen for so much of our history?
Adam Cohen: I think it can make a big difference. And what you point out is right: We know that Republicans very often appoint big law firm partners and prosecutors to be judges, but so do Democrats, right? And where are the people who are working in poverty law in Brooklyn? When do they get to be on the federal Courts? They don't even under a democratic president. Absolutely. The things that we believe in as a party should be reflected in who we appoint to the Courts.
Michael Waldman: Thank you for listening to this episode of Brennan Center Live with Adam Cohen and Melissa Murray.
Please look out for Brennan Center events, follow us on social media, and sign up for my weekly newsletter, “The Briefing,” at BRENNANCENTER DOT ORG. The Brennan Center LIVE podcast is available on our website and wherever you get your podcasts.