Vol. 32 No. 7 (July 2022) pp. 87-90.
SUPREME INEQUALITY: THE SUPREME COURT'S FIFTY-YEAR BATTLE FOR A MORE UNJUST AMERICA, by Adam Cohen. New York: Penguin Random House Books, 2020. pp.448. Paperback $18.00. ISBN: 9780735221529.
Reviewed by Thaddeus Hwong. School of Public Policy and Administration, York University, Canada. Email: thwong@york.ca.
If you think the Supreme Court of the United States has always been there to protect the weak from the strong as in the poor from the rich, think again. That is in essence what Adam Cohen argues in his book.
The book is not the first to argue that the Court did not do what a court of justice was supposed to do. A few years ago, Erwin Chemerinsky made a compelling case in his 2014 book. He showed that the Court supported slavery, fortified racism and did a whole lot more damage to civil liberties. Building on that line of inquiry, Cohen shows that the Court cuddled the rich and hurt the poor. His book fits snuggly alongside Chemerinsky’s in a library shelf of books unravelling the Court’s misdeeds hidden in plain sight – Cohen’s 2017 book on the Court’s role in legitimizing eugenics, Adam Harris’ 2021 book on the Court’s role in depriving education opportunities from Black people and Chemerinsky’s 2021 book on the Court’s role in promulgating police violence.
As Cohen doesn’t mince words about the Court, and as he writes with convictions, this review would make productive use of his own words in trekking the path he paves to reach an observation that America just might not be ready to fathom.
In Cohen’s snapshot, the Court might look like it had been starring in a dystopian epic. “The Court had not merely stopped its efforts to lift the boots of oppression off the necks of the poor; it had also gotten in some kicks of its own.” (p. 310). The Court was not a passive bystander but an active perpetrator. “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). In its past the Court could have done the right thing, but it didn’t. Time and time again. The history of the Supreme Court is where the romanticism about the pursuit of justice goes to die.
Setting the stage for the exposition in the book, Cohen leaves no doubt where he wants to go at the start in its introduction. First, he builds up the myth. “In American history and civics classes, the Court is generally presented as the branch of government that looks out for vulnerable minorities and ensures fairness for all. The justices have often talked of themselves this way.” (p. xx). Then he tears it down. “The Court’s decisions have lifted up those who are already high and brought down those who are low, creating hundreds of millions of winners and losers.” (p. xvi). The contrast between what ought to be and what was envelops the tapestry of injustices concerning education (Chapter 3), campaign finance (Chapter 4), democracy (chapter 5), workers (Chapter 6), corporations (Chapter 7) and criminal justice (Chapter 8). To launch an expedition to unveil the real Court, Cohen first moves in the book’s initial two chapters to dispose of the white elephant in the room – the aberration of the Warren Court.
Using the ostentatious promises of the Warren Court as a flash point, Cohen sets up the inevitable letdown to come: “The Court did not merely bring important, substantive relief to welfare applicants and salaried workers. It also made clear that it understood the challenging lives that low-income Americans led, and it conveyed that it was troubled by laws that interfered with the ability of people to come up with the means of subsistence. The Court seemed to be moving, slowly but surely, toward finally taking a bolder stand on behalf of the poor.” (p. 34). Then Cohen dashed the idealistic illusion swiftly. “Even at the height of the Warren Court, when it was still expanding the rights of the poor, it would have been difficult to persuade the justices to recognize a right to subsistence.” (p. 38). The seeds of disappointment were right there for all who cared to look.
Law is politics, and politics molds the Court. “With the end of the Warren era and the rise of the Nixon era, the Court changed from being a force for equality for the poor to being a powerful driver of inequality. This would be true in areas that went well beyond poverty law.” (p. 90). What a shame. “There is no knowing how much better the economic conditions of poor people would be if the Court had recognized them as a protected class.” (p. 88). The book would have looked totally different if the Court had charted a different course in more ways than one.
Education is a case in point. What if the Court had a different makeup and predisposition? “If it had, American education would likely look very different.” (p. 130). If it had, “all fifty states would have been required to have equal funding across their school districts. Had they done so, students in poor school districts would have been considerably better off.” (p. 130). The mere thought of thinking about how that could have changed the course of American history, not only in education but also in racial relations, is tantalizing yet depressing.
Campaign finance is another. Imagine the Court had ruled forcibly and consistently for one person, one vote. “After Watergate, the political system responded remarkably well. Congress passed a strong campaign finance law that imposed strict limits on campaign contributions and expenditures, designed to keep special-interest money out of elections. The president signed it, and the U.S. Court of Appeals for the D.C. Circuit upheld it. Then the Supreme Court, which had four justices nominated by Nixon – who had been forced from office by the scandal that led to the law – dismantled the protections Congress put in place. It has been opening the floodgates wider ever since.” (pp. 165-166). The Court did not usher in the system of one dollar, one vote. But the Court did not change the system that favors those of influence and affluence when it was given the chance to do so.
If campaign finance is the fuse, election law might be the blast. The Court was not in a jurisprudential straitjacket with no choice but to drown out the voices of the people. “It could have adhered to the Warren Court’s guiding principle that, as Earl Warren himself said, what matters most in election law cases is ensuring that there is “fair representation in our governmental systems.” 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. In doing so, it has created an electorate that is less inclined to support policies that help poor and working-class Americans – and a nation that is less likely to get them.” (p. 192). The Court did not singlehandedly create a system of discrimination in voting rights. But the Court definitely did not make changing the system for the better easier.
The pro-rich, anti-poor stance cuts across different areas of law, twisting the socio-economic fabric of America. “Taken together, the Court’s decisions involving the rights of workers, including its campaign finance decisions, have had a devastating impact on the economic standing of low- and middle-income Americans. They have denied workers damage awards when they are treated unfairly and encouraged employers to discriminate more in the future. They have deprived workers of the wage and benefit premiums that come with union membership. They are a major reason that the poorest workers have not seen an increase in the minimum wage in a decade and have little recourse when their wages are stolen, and they are a significant factor in the nation’s high rates of death and injury on the job. If the Court continues to favor employers and campaign contributors so extremely, the economic standing of workers, and particularly low-income workers, will likely continue to decline.” (pp. 231-232). The pro-employer, anti-worker stance is not just about some temporal tension in labor relations as it’s about the eternal struggle of labor versus capital.
Capital won big in the Court. “The Court’s business rulings are not only unfair to the individual litigants who lose their cases but to whole economic classes. They have caused a massive transfer of wealth to corporations, corporate executives, and shareholders. That wealth is coming from ordinary Americans who interact with corporations not as owners or managers but as consumers, employees, and innocent bystanders. In its decisions involving corporations, the Court has made especially clear something that is true across virtually every area of the law: that it is a Court for the 1 percent, not the 99 percent.” (p. 266). If we think about judicial decision making of the Supremes considering their economic class, how many of us will be surprised that the Court acted as if business is just business, not personal?
The pro-top 1% Court helped make the current American struggles that much darker. For one, criminal justice morphs into something more than just criminal injustices. “Economic inequality has risen at a furious pace, the middle class has contracted, and the status of the poor has become ever more precarious. This economic transformation makes firmer methods of social control, including more oppressive forms of policing, likely – if not inevitable.” (p. 306). Black Lives Matter. Defund the Police. The doings of the People’s Court loom large, streaming live each day in people’s lives.
The book often asks: what if the Court had done something different? Something better? That’s an illuminating set of questions. But the mere fact that most Supremes were bound by the velvet bond of a certain economic class could put a damper on conjectures that they could have had been willing to push hard to champion for the downtrodden. If you are a realist, a line of realist kind of inquiry might be what if the Court will do something far worse in creating an even more unequal society. Robert Reich picks the Court as one of the three biggest and least accountable power centers in America. The 6-to-3 unrivaled conservative majority of the current Court can enshrine Trumpism in landmark precedents if it wants to. Some say the omnipresence of such a highest court of the land just means that if you don’t like the rulings of the Court, you should go elect a President who will nominate different Supremes. But at this juncture, thinking about that is like thinking about trying to put the toothpaste back into the tube. See, timing was on the side of President Trump, and hence the configuration of the current conservative majority came into being. For real, a win in another presidential election can’t change what was done. It is what it is. The bottom line is that in the future the Court really can do far worse than what the Court did in the past as documented by Cohen, Chemerinsky and Harris in their books. No doubt, many with faith in American democracy will continue to try to win elections as that’s what they must do to hold onto some resemblance of hope. But election is not the stopper they desperately want it to be. The Court is supposed to be the checker rather than the checked in the grand design of the American experiment. Here comes the kick in the gut for those who do fear that the worst is yet to come – America simply doesn’t have a Plan B.
REFERENCES:
Chemerinsky, Erwin. (2014) THE CASE AGAINST THE SUPREME COURT. New York: Viking Penguin.
Chemerinsky, Erwin. (2021) PRESUMED GUILTY: HOW THE SUPREME COURT EMPOWERED THE POLICE AND SUBVERTED CIVIL RIGHTS. New York: W. W. Norton & Co.
Cohen, Adam. (2017) IMBECILES: THE SUPREME COURT, AMERICAN EUGENICS, AND THE STERILIZATION OF CARRIE BUCK. New York: Penguin Books.
Harris, Adam. (2021) THE STATE MUST PROVIDE: WHY AMERICA'S COLLEGES HAVE ALWAYS BEEN UNEQUAL – AND HOW TO SET THEM RIGHT. New York: Ecco.
© Copyright 2022 by author, Thaddeus Hwong.
