‘Supreme Inequality’ argues that the high court’s decisions favor the powerful

Adam Cohen asserts that rulings on everything from election law and education to corporate law and crime have contributed to growing inequality.

Courtesy of Penguin Random House
“Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America” by Adam Cohen, Penguin Press, 416 pp.

In March 1970, the U.S. Supreme Court ruled that certain welfare recipients couldn’t be deprived of benefits without notice or an opportunity to be heard.

The landmark ruling in Goldberg v. Kelly was hailed as a major victory for poor people and hinted at the possibility of even greater constitutional protections for those on the bottom rungs of American society.

In hindsight, as Adam Cohen argues in “Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America,” that decision proved to be the high-water mark for the high court’s sympathetic treatment of those in poverty.

Cohen’s ambitious, well-written book makes a convincing case that the court has contributed to growing inequality through its rulings on everything from election law and education to corporate law and crime.

“For five decades, the Court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of law,” Cohen writes.

The court’s impact on economic inequality is both direct and indirect. Refusing to equalize funding between rich and poor school districts has made extreme educational inequality inevitable, Cohen argues. Rulings weakening unions or making it harder for employees and consumers to sue corporations have driven down wages as corporate profits have expanded.

Campaign finance decisions have shifted money and influence to the powerful at the expense of lower-income workers and consumers while justices seem more sympathetic to wealthy or powerful criminal defendants like insider traders, he writes.

This is not news. UCLA School of Law professor Adam Winkler earned a spot on the list of National Book Award nonfiction finalists in 2018 for “We the Corporations: How American Businesses Won Their Civil Rights,” his account of how the court has given companies many of the same rights as people.

Cohen, a former New York Times editorial writer, still deserves credit for tying the threads together. He has a particular knack for writing about the court’s impact on society’s most vulnerable people.

This book is also an elegy to Chief Justice Earl Warren, an appointee of President Dwight Eisenhower who unexpectedly led a liberal revolution during a 16-year tenure that ended in 1969. The accomplishments of Warren’s court – or damage, depending on your opinion of Warren and liberal allies such as William Brennan – look increasingly like a historical outlier as conservative successors keep rolling them back.

If every story needs a villain, Cohen’s is President Richard Nixon. He excoriates Nixon for a “lawless campaign” to drive liberal Justice Abe Fortas off the Supreme Court soon after taking office in 1969. The book is full of “what if” scenarios had Fortas remained and altered the trajectory of school-funding equalization or welfare rights in the 1970s.

As it is, decisions on abortion and the death penalty in the 1970s triggered a conservative backlash. An even more liberal Supreme Court might have only hastened Republican efforts to remake the courts.

Cohen overemphasizes how much a justice’s socioeconomic background determines his or her sympathy to working-class Americans. “Like many justices who spent their entire lives in economic comfort,” Cohen writes of Sandra Day O’Connor, “[she] exhibited little sympathy for the plight of people struggling to survive.”

There are counterexamples in both directions. Clarence Thomas, currently the only African American justice, was born poor and yet is the justice Cohen would say most often votes against working-class economic interests. Or Brennan, who was “born into poverty, or close to it.” He also earned two Ivy League degrees before going to work at an elite New Jersey law firm during the Depression as a corporate lawyer, defending against New Deal labor laws.

The current court – composed of Ivy League-educated former federal appeals court judges – would benefit from more diversity, in terms of geography, education, and work experience. 

But as Brennan and Thomas surely prove, biography isn’t destiny.

Seth Stern is an editor at Bloomberg Law and co-author of “Justice Brennan: Liberal Champion.”

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