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    The Supreme Court’s Enduring Bias

    February 11, 2020  | 

    A template for popular books about the Supreme Court has emerged since Bob Woodward and Scott Armstrong’s The Brethren was published in 1979. It goes like this: Interweave case histories with biographical material on the justices and add anecdotes about their unseemly horse-trading. Then pack in as much gossip as you can. Journalists including Jeffrey Toobin, Jan Crawford Greenburg, Marcia Coyle, and Joan Biskupic have mastered this form, producing books that are both entertaining and illuminating. Better still are judicial biographies that use the historical record to present seminal cases and the people—litigants and lawyers, as well as justices—who shaped them. Two outstanding examples are Linda Greenhouse’s Becoming Justice Blackmun and Seth Stern and Stephen Wermiel’s Justice Brennan: Liberal Champion. These books function like windows in a brick wall. The Court does its work in private, and the public understandably wants to know more.

    Adam Cohen, a former member of the New York Times editorial board, has dispensed with these conventions and written a book that is almost pure law. Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America does not pander to readers or mug for their attention. Occasionally a justice will get a brief sketch, but it is little more than what you could find in his or her entry on the Supreme Court Historical Society’s website. Cohen deals in cases and their impact on the country. He acknowledges the risk of a volume that is all medicine and no sugar, quoting a public-interest advocate who notes that the public has largely missed the harm the Court has been doing, because “issues like class-action rules and preemption and arbitration” can make “most people fall asleep.”

    Yet in this age of the judge as celebrity, the decision to focus not on the personalities of the Court but rather on the ideas that fill its opinions has obvious allure. I admire Ruth Bader Ginsburg as much as the next feminist, but I have seen enough movies about her for now. The late Antonin Scalia developed such a cult of personality among Federalist Society members that he felt emboldened to make an obscene gesture to a reporter and did not recuse himself from a case in which his impartiality was in serious question. And most recently, Brett Kavanaugh’s confirmation hearings caused some Court watchers to turn away in disgust. Given individual justices who can sometimes seem too big for their robes, Cohen’s wonky emphasis on cases rather than characters offers a steady perspective. After all, the ideas at stake in Supreme Court decisions are what touch our daily lives.

    Cohen takes as his subject the Supreme Court’s trajectory, and its footprint, since Earl Warren’s rights revolution of the 1950s and ’60s. The Court, Cohen suggests, is more influential in shaping national life than many Americans realize. Blockbuster decisions such as Bush v. Gore of course make headlines and attract widespread attention. But Cohen seeks to explore the Court’s place in government in a coherent, structural sense—and the role it plays deeply troubles him:

    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.

    In our civic imagination, the Supreme Court protects the downtrodden and safeguards fairness. equal justice under law read the words over the Court’s entrance; justice the guardian of liberty proclaims the building’s eastern facade. This is the noble dimension of the Court’s identity, which the justices emphasize to the citizenry. Cohen disdains it as self-congratulatory cant, describing the Warren Court’s egalitarianism as an exception rather than the rule. The modern Court has more frequently protected the interests of wealthy elites than of minorities and the vulnerable. Cohen writes that in the 50 years since Warren Burger replaced Earl Warren, “the Court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of the law.”

    As these lines suggest, Supreme Inequality is ambitious in scope. Cohen describes the erosion of individual protections and the amplification of corporate power in areas as diverse as criminal justice, business and employment law, and voting rights. He structures sections of the book as lessons in retrenchment: What the Warren Court hath given, the Burger, Rehnquist, and Roberts Courts hath taken away. For example, Cohen’s chapters on poverty law trace the descent from Warren Court cases such as King v. Smith, which struck down a state rule that allowed authorities to terminate the welfare benefits of a single woman with children if a man regularly stayed with her, to Burger Court opinions such as Dandridge v. Williams, which upheld a Maryland rule that capped welfare payments regardless of the number of children in a family. Similarly, in his section on voting rights, Cohen shows how the Court regressed from the Warren Court’s seminal Baker v. Carr decision, which asserted the Court’s jurisdiction over political redistricting, to the recent Rucho v. Common Cause, which ruled partisan-gerrymandering questions “nonjusticiable” and therefore beyond the justices’ purview. A key factor in the poverty and voting case trends has been raw political power: whether Democrat- or Republican-appointed justices hold the majority.

    One of Supreme Inequality’s strengths is Cohen’s ability to spot parallels and draw connections for readers over a range of legal disciplines. This signposting is essential for a book that covers so much ground. Take his discussion of the controversial 2010 decision Citizens United v. FEC, which famously invalidated a federal law prohibiting corporations from spending money to support or denounce political candidates (while still forbidding direct contributions to them). Cohen contrasts the Court’s solicitude for corporate speech with its unwillingness to protect ordinary citizens wishing to post campaign signs or distribute political leaflets in public spaces:

    When the wealthy and powerful wanted to use their money to influence elections, the Court swept aside an elaborate campaign finance regime that had been enacted by Congress and signed by the president, responding to strong popular demand, to help a nation heal after a scandal [Watergate] that went all the way to the White House. When poor and middle-class people challenged bans on their ability to hand out leaflets or post campaign signs, the Court suppressed their speech, out of deference to Postal Service mailbox rules and municipal concerns about clutter.

    Another, more striking example of Cohen’s cross-categorical trend-spotting compares the Court’s Eighth Amendment case law on “cruel and unusual punishments” with its due-process decisions on excessive punitive-damages awards against large companies. In 2003, the Court refused to upset a 25-years-to-life sentence, under California’s three-strikes law, for a man who shoplifted about $150 worth of videotapes. However, just a month later, the Court overturned a $145 million punitive-damages award against an insurance company for egregious conduct toward a customer, finding it disproportionate to the actual harm incurred. (The insurance company refused to allow a customer to settle a lawsuit with third parties on the promise that it would cover the bill if he lost at trial, but then, when he did, it refused to pay.) “The Court had two very different ideas about proportionality of punishment,” Cohen writes: “one for corporations under the Fourteenth Amendment Due Process Clause and another for people under the Eighth Amendment.”

    This is a sobering juxtaposition, but in making it, Cohen risks populist overreach. Rather than arguing that both the three-strikes case and the punitive-damages case should have come out differently, Cohen might consider that only one of the cases was decided incorrectly. A 25-year sentence for shoplifting does seem grossly inequitable. But that does not make draconian punishments of companies just. As he concedes, the concerns animating the Court’s punitive-damages decisions have attracted liberal justices as well as conservative ones. Justice John Paul Stevens, a great progressive who wrote one of the first decisions striking down an excessive award (it was 500 times the size of the actual damages), harbored legitimate misgivings about a result like that and what it says about due-process principles such as fairness and notice.

    In addition to spotting trends, Cohen plays out the consequences of Supreme Court decisions beyond daily headlines. For example, he writes that with amplified political influence, corporations pursue policies that favor their interests, often at the expense of consumers and workers. He follows the line from Citizens United to the defeat of minimum-wage increases and the enactment of state right-to-work laws, which weaken unions by preventing them from requiring workers to pay dues. When a minimum-wage bill was voted down in the Senate in 2014, it was by all appearances a failure of the political branches. “No one thought to blame the Court,” Cohen writes, “even though it was its decades of campaign finance rulings that made the billionaires’ wishes count for so much and public opinion count for so little.” This is a fair point, if somewhat stretched. Voters did, after all, elect the senators who failed to pass the minimum-wage bill, and unions have been shrinking in influence and political power for generations.

    Cohen makes a respectable case that the Court has protected the powerful at the expense of the vulnerable, but he downplays lines of case law that undercut his thesis. The result is a book that is frequently persuasive but overly pessimistic. He devotes only a few paragraphs to watershed gender-equality and gay-rights decisions that future generations may someday view as the Brown v. Boards of our time. He also overlooks an enormously consequential series of cases from 2004 to 2008 that restrained the Bush administration’s excesses at Guantánamo Bay. The question of the limits on executive power to protect national security during wartime is one the justices consider only rarely; the previous major precedent was issued in 1952. For a structuralist like Cohen, having opinions on the books that limit an overreaching president should be big news. Yet Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush do not receive mention in Supreme Inequality.

    This unevenness shows up in the book’s rhetoric as well. Although Cohen is relentlessly substantive, his arguments can sometimes veer toward newsroom hot takes and away from scholarly reflection. President Richard Nixon “killed off the liberal Warren Court.” The Court “rescued another corporate bad actor from a jury’s damage award.” Its rulings “have saved corporations many billions of dollars that otherwise would have gone to people they had injured or cheated.” It is even moving the country in the direction of “two distinct totalitarian nightmares” (complete surveillance and a prison state). Ultimately, Cohen writes, “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.” With these strident lines and more like them, Cohen will put off many readers.

    That last point, with its overheated language straight out of Orwell, reveals an ironic limitation of a book that declines to follow the justices into their conference room for a little backstage dish. Cohen’s stridency occurs in a discussion of the Court’s 2012 decision that upheld the Affordable Care Act’s individual mandate. Along the way, seven members of the Court voted to strike down the ACA’s expansion of Medicaid. That was one of the kicks against the poor that Cohen charges the Court with delivering. But as we learn more about the case, it appears that two of those seven votes, by the liberal justices Elena Kagan and Stephen Breyer, may have been cast in return for Chief Justice John Roberts’s crucial vote to uphold the individual mandate. Kagan’s and Breyer’s pragmatism may well have bought enough goodwill from the chief justice to save health care for millions of Americans.

    Was their decision a worthy trade-off—or should judges be doctrinal absolutists in the tradition of Ginsburg and Scalia? That is a discussion worth having, but Cohen closes off debate by resorting to the crude imagery of boots on necks. Moreover, by declining to examine the shifting allegiances and conflicting views of the justices as they grind out the Court’s sausage, Cohen also eclipses hope. The Supreme Court is not returning to the crusading liberalism of the Warren Court anytime soon. That leaves the pragmatism of dealmakers like Kagan and Breyer as the best chance for legal progressives to eke out wins, one case at a time.

    But strategy aside, the Court’s central role in our politics and public life is beyond question, especially as dysfunction paralyzes Congress and the presidency. Renewing our focus on the substance of the Court’s business—its individual decisions as well as their cumulative effect—is hard work, and more vital than ever.

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