The Conservative Court

The Conservative Court

Since the Nixon era, the Supreme Court’s treatment of poverty and racial justice has made it a consistent enemy of society’s most marginalized.

Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America
by Adam Cohen
Penguin Press, 2020, 448 pp.

In 1963, I started work at the American Civil Liberties Union. My assignment was to establish new affiliates of the organization in states such as Texas and Oklahoma and to upgrade the capacity of long-standing state affiliates, such as those in Michigan and Pennsylvania. It was a thrilling time to be engaged in those tasks. ACLU activities were regularly punctuated by victories for civil liberties at the U.S. Supreme Court, many of them in cases argued by the lawyers I was working with. Those wins included cases substantially expanding the rights of criminal defendants to be treated fairly by the police and the courts, striking down loyalty oaths required of public employees, ending the censorship of movies, overturning the prohibition on interracial marriage, barring state-enforced religious practices, expanding the right to protest, upholding freedom of speech, equalizing the right to vote in state elections, requiring that welfare recipients should be treated fairly, and many more.

In 1970, fifty years after it was founded, I became the ACLU’s fourth national executive director, a post I held for the next eight years. It was a very different period on the court. Richard Nixon became president in 1969 and soon had the opportunity to designate Warren Burger as chief justice of the Supreme Court, replacing Earl Warren. He appointed three other justices during his first three years in office. The Nixon Court succeeded the Warren Court.

The ACLU continued to prevail in some important cases. We supported the New York Times and the Washington Post in publishing the Pentagon Papers, helping to achieve a major victory for freedom of the press. We also established the pioneering Women’s Rights Project, directed by Ruth Bader Ginsburg, which won a series of victories before the Supreme Court that largely, though not completely, made overt discrimination against women as legally untenable as overt discrimination against racial minorities.

Though we took pride in the quality of the legal work of Ginsburg and her colleagues in those cases, we recognized that more was involved than litigation strategy and skill. A crucial factor in our success was the transformative impact of the women’s rights movement on American society in the 1970s. Women were securing jobs and workplace responsibilities previously denied to them; they were entering educational programs and professional specialties in which their presence had been scarce; they were enlisting men to share in domestic duties that most had previously disdained. Changes in the law required by our Supreme Court victories accompanied and facilitated these developments, but they did not take place in isolation. A similar process took place decades later when the Supreme Court struck down limits on gay rights, including the prohibition on same-sex marriage. Those decisions came down after the emergence of a substantial gay rights movement, which had already transformed American society by the early years of the twenty-first century. The Supreme Court’s decisions did not lead the way.

The legal victories for women’s rights and gay rights in the past half century have partially obscured the picture Adam Cohen paints in his important book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. Cohen, a former member of the New York Times editorial board, makes a compelling argument that since the advent of the Nixon Court, the highest court in the land has been a consistent ally of corporate interests and the wealthy and the enemy of Americans who are less economically fortunate, especially those who are racial minorities. He achieves this by systematically analyzing the Court’s decisions on welfare, education, voting rights, campaign finance, labor, corporate responsibility, and criminal justice over the past five decades.

Cohen is particularly concerned with the Supreme Court’s treatment of poverty through its decisions dealing with welfare recipients. He writes that the Warren Court “appeared to be edging . . . closer to declaring the poor to be a suspect class, protected [by the U.S. Constitution] in the same way racial and religious minorities were.” In 1968, in King v. Smith, the Court invalidated “substitute father” regulations that deprived women in eighteen states of welfare benefits for their children if a man visited the home frequently, on the theory that these women should look to their male visitors for support for their children. In 1969, in Shapiro v. Thompson, the high court struck down durational residency requirements that denied benefits to those who had not resided in a particular state or county for a certain number of months or years. And in 1970, in Goldberg v. Kelly, the Court ruled that welfare officials had to hold evidentiary hearings before terminating or suspending a recipient’s benefits.

The Court reversed this trend hard on the heels of Goldberg in its 1970 decision in Dandridge v. Williams. The case involved a woman in Baltimore whose husband had deserted her and their eight children. Under Maryland law, following a budget cut, aid to families with dependent children was capped so that large families received less per child than smaller families. Aid was not based on the individual needs of each child. The plaintiffs contested that this was discriminatory against large families. The Supreme Court upheld the cap, demonstrating its unwillingness to allow individual need—or poverty itself—to be a factor in its jurisprudence.

Following Dandridge, it became clear that litigation was not a means of mitigating poverty in the United States. Though there has been greater recognition in recent years that increasing economic inequality is a matter of overriding significance, it will not be solved or mitigated by a rights-based judicial approach. It will not be addressed meaningfully in the absence of a mass movement of the poor that brings about a major shift in the country’s political landscape. Such movements arose in the United States in the 1930s and again in the 1960s, but there are few signs of the emergence of a movement of similar strength today. With the COVID-19 crisis, the lethal consequences of poverty have become even more apparent. Many of the poor have been unable to engage in the social distancing needed to protect themselves from becoming sick, both at home and on the job.

For many years, conservatives denounced the Warren Court for its “judicial activism”; critics complained that the justices were legislating from the bench. When current Chief Justice John Roberts appeared before the Senate Judiciary Committee for his confirmation hearing, he famously compared his view of his duties to those of a baseball umpire: he would impartially call balls and strikes. In practice, however, Roberts, like other justices of the past half-century who have tilted the Court’s jurisprudence against the poor and racial minorities, has been anything but impartial.

As an example, Cohen cites Roberts’s decisive 2013 opinion in Shelby County v. Holder, which struck down a key provision of the Voting Rights Act of 1965, the most important federal law on the books protecting civil rights. Adopted in the immediate aftermath of Alabama’s violent suppression of the march for voting rights led by Martin Luther King Jr., the law required states and localities with a history of minority voter discrimination to clear in advance with the Justice Department any changes in election laws and procedures. Many of the act’s provisions were written so that they would expire unless they were periodically reauthorized by Congress, which it did for decades. When Ronald Reagan signed an extension in 1982, he declared, “The right to vote is the crown jewel of American liberties, and we will not see its luster diminished.”

But as time went on, the luster did diminish. As Cohen writes:

When Congress reauthorized the Voting Rights Act in 2006, it knew the Court had become more hostile to voting rights. To strengthen the act for the next challenge, it created an extensive record to show why its protections were still needed. It held extensive hearings, which produced a more than fifteen-thousand-page record reviewing the ways in which minorities were still discriminated against in voting. The reauthorization passed the Senate 98-0 and the House 390-33, and George W. Bush signed it into law.

Just seven years later, when Chief Justice Roberts’s opinion struck down the preclearance requirement of the Voting Rights Act, he was joined by the four other justices appointed by Republican presidents. In the minority: all four justices appointed by Democratic presidents.

As Cohen points out, Roberts acknowledged that his decision to remove a federal law was extraordinary. He quoted Justice Oliver Wendell Holmes Jr., who said that striking down an act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” Roberts did not add that his decision was particularly extreme given that the Voting Rights Act has been repeatedly reaffirmed by large margins in Congress, reflecting its central role in the country’s belief in itself as a rights-respecting democracy. Even more extraordinary is the fact that the act was adopted by Congress pursuant to the specific authority of the post–Civil War Fifteenth Amendment, which prohibits racial discrimination in voting and grants Congress the “power to enforce this article by appropriate legislation.”

One would think that Roberts would have to rely on a clearly spelled out countervailing constitutional principle to take such an extreme action. Far from it. Roberts based his decision on the need for equal treatment of the states. Yet nowhere does the Constitution say that states must be treated equally; it guarantees equal protection of the law to persons, not states. Cohen cites Richard Posner, at the time a judge on a U.S. Court of Appeals, on the principle invoked by Roberts: “a principle of law of which I never heard—for the excellent reason that . . . there is no such principle.”

Perhaps the only Supreme Court decision in our era as bereft of principle as Shelby County v. Holder was its unsigned 5–4 decision in Bush v. Gore to halt a recount of votes in Florida in the 2000 election. Under Chief Justice William Rehnquist, the Court gave the presidency to Bush, but it also stated that the decision was “limited to the present circumstances” and, therefore, did not establish a precedent. It was a remarkable admission: Justice Antonin Scalia, part of the majority in Bush v. Gore, had written in a decision just four years earlier that the Court’s “principal function is to establish precedent.” Again, all the justices appointed by Republican presidents were in the majority, and all those appointed by Democratic presidents were in the minority.

The impact of Shelby County in Alabama was immediate. “Within twenty-four hours of the ruling, the state announced that it would start requiring photo ID, reviving a plan that had been blocked by the Voting Rights Act. Alabama then announced that it would close thirty-one driver’s license offices, one of the main places where voters obtained ID that could be used to vote,” Cohen writes. The closed offices were in predominantly African-American neighborhoods.

In the eight years since Shelby County, efforts to limit voting have proliferated. Large numbers of polling places have been closed; there have been purges of voter rolls; same-day registration and other procedures to simplify enrollment have been eliminated; new voter identification rules have been enacted; early voting has been circumscribed; and gerrymandering to crowd minorities into a limited number of districts has become an ever more sophisticated political stratagem. Some of the most intense activity has occurred in places such as North Carolina, a swing state in national elections, and Texas, where demographic changes over time could shift the state from being a reliable source of a large number of electoral college votes for Republican candidates. Supreme Court decisions subsequent to Shelby County have extended the role of the Court, which once helped to launch a civil rights revolution, as a present-day ally of those intent on limiting the voting rights and the voting impact of minorities.

There is little chance that these trends will be reversed anytime soon. During his term in office, Donald Trump appointed three justices who have shifted the balance of the Supreme Court further to the right. If Joe Biden gets to fill a new seat, it will most likely be for the successor to the Court’s oldest member, Stephen Breyer, a staunch liberal, who is now eighty-two. The balance would stay the same. The next oldest member, Clarence Thomas, is seventy-two.

In other countries such as India and South Africa, the courts have been far more sympathetic to attempts to address some of the consequences of economic inequality through litigation. The constitutions of such countries—adopted two years after independence in the case of India and after apartheid in the case of South Africa—contain provisions dealing with economic and social rights that are not present in the U.S. Constitution. In India, litigation dealing with the right to food led to the requirement that school lunches be provided by the government. In South Africa, the Constitutional Court implemented a right to healthcare by requiring the government to provide pregnant women with a drug that would prevent the transmission of HIV to their newborn babies.

With the possible exception of the Sixth Amendment, which guarantees legal representation for all defendants, the U.S. Constitution does not explicitly or implicitly express a concern with poverty. It is hardly surprising, therefore, that the successors to the Warren Court should fail to consider the poor as deserving of special protection through constitutional litigation. The jurisprudence of the Warren Court itself did not lead in that direction. Its decisions involving welfare recipients protected the poor only by extending to them rights that were customarily accorded to others.

In a democratic state, the distribution of resources and of economic burdens, along with the protection of public safety, are ordinarily considered the main responsibilities of the elected branches of government. Even in countries such as South Africa and India, where litigation has in some instances alleviated the suffering that accompanies poverty, it has not had a substantial impact in mitigating economic inequality. Despite the difficulties, we have no choice but to rely on the political process to deal with economic inequality. Of greater concern is where the courts stand in the way of that political process.

The most dismaying part of the story told in Supreme Inequality is how the Court dealt with racial minorities over the past five decades. Their rights, unlike those of the poor, are explicitly guaranteed in the Constitution—by the Thirteenth, Fourteenth, and Fifteenth Amendments, all adopted following the Civil War. Moreover, in the twentieth century, during a period when it was impossible to secure protection for the rights of African Americans through Congress—in part because of denial of the right to vote in the Southern states—the Supreme Court rescued the country from de jure segregation. Under the leadership of the Warren Court, the federal courts became champions of the rights of African Americans. The reversal of that role in the past half-century, especially during the era of the Roberts Court, has done lasting damage to the claim of the United States to be a rights-respecting democracy.

Aryeh Neier is the president emeritus of the Open Society Foundations. He was previously the executive director of the American Civil Liberties Union and the founding executive director of Human Rights Watch. A revised edition of his most recent book, The International Human Rights Movement: A History, was published by Princeton University Press in 2020.