A Supreme Court for the Rich - The New York Times

Behind the corinthian columns of the United States Supreme Court sit  guardians of civic virtue.  Their devotion to "equal justice under law" is carved in the marble facade. But Adam Cohen devotes his new book to demonstrating that after the brief flowering of such commitment in the Warren Court era retrenchment began in 1969 with the election of Richard Nixon who named the intellectually shallow but reliably conservative Warren Burger as Chief Justice.  It has gotten worse since then.  William Rehnquist was followed in the post by the "balls and strikes" conservatism of his former law clerk John Roberts.

A particularly defining low point was Rodriguez v. San Antonio, the 1973 decision in which the court rejected actions to equitably fund public schools, saying that economic inequality was beyond the reach of the Equal Protection Clause of the post-Civil War 14th Amendment.

Kenji Yoshino lauds Adam Cohen's effort but regrets that he has little to add about how to remedy the situation.  That road will require a major shift in the composition of the federal judiciary, top to bottom.  Better luck may be found in the courts of the so-called Blue States. - gwc

A Supreme Court for the Rich - The New York Times
review by Kenji Yoshino

SUPREME INEQUALITY
The Supreme Court’s Fifty-Year Battle for a More Unjust America
By Adam Cohen
Many progressives hold these truths to be virtually self-evident. The United States Supreme Court has the hallowed role of protecting the most vulnerable in society. At a minimum, it does not engage in judicial activism to burden them further. And only now, when the court has shifted decisively to the right, is it in danger of relinquishing that function.

Adam Cohen’s “Supreme Inequality” shows that these beliefs utterly fail to capture the court’s treatment of the poor. For 50 years, he explains, it has exacerbated economic inequality through its aggressive jurisprudence.

To begin with the most sacred cow, Cohen, a former member of the New York Times editorial board and the author of several books, refutes the idea that the Supreme Court consistently looks out for vulnerable groups in society — what one fabled 1938 case called “discrete and insular minorities.” According to the theory set in motion in that case, the court’s isolation from representative politics is a virtue because a powerful minority at the top of society — the federal judiciary — can protect powerless minorities at the bottom against the prejudice of the masses.

During the Warren court era, which stretched from 1953 to 1969, Cohen suggests that the court did exactly that. It was even poised to recognize the indigent as a constitutionally protected group, like racial minorities, under the Equal Protection Protection Clause.

Yet after it turned to the right in 1969, Cohen argues, the court also turned on the poor. Most of his book builds a brick-by-brick case for this thesis, with chapters on education, campaign finance, democracy, workers, corporations and criminal While at times ponderous, Cohen’s sweeping review is impressive and necessary. If asked for a Supreme Court case on poverty, I suspect most constitutional law scholars would cite the 1973 case of San Antonio School District v. Rodriguez, where the court declined to deem the poor a constitutionally protected class. 

Cohen agrees that Rodriguez had a huge effect. But he makes the point that myriad other decisions, while less widely known, did so as well. Rulings upholding strict voter identification laws and voter purges disproportionately affected the poor. So did limitations on class action lawsuits, because class actions allow plaintiffs suffering relatively small monetary losses to band together. And so did a decision declining to find a three-strikes law to be a “cruel and unusual punishment,” which left in place a 50-year prison sentence for a man who stole videotapes worth $153.54. By taking in the whole picture, Cohen connects seemingly unrelated dots to reveal a troubling pattern.

KEEP READING