On a recent episode of Amicus, Dahlia Lithwick was joined by Adam Cohen, the author of Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, to discuss the Supreme Court’s role in the country’s ever-widening inequality gap. For a brief nanosecond in history, the court was a champion of the poor, but, Cohen explains, that all changed in the late ’60s. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: We’re all taught this very cheerful narrative about how the Supreme Court exists to protect vulnerable minorities. At a minimum, the court has to ensure equal justice under the law—that’s emblazoned on the building itself. But the main point of your argument is that actually when it comes to poverty, the court has done more, or as much, to create the structural income inequalities we see today than any of us actually believe. So my very obvious question is why are we so in love with this narrative about the court defending the underdog, when it did so only briefly and glancingly and hasn’t done so before and is not doing so now?
Adam Cohen: I think we all grew up with this myth: the Supreme Court, the champion of the underdog. We grew up with it being fed to us through movies and books about Brown v. Board of Education, about desegregating the South. It’s a nice story; it’s a story we’d like to believe.
But if you really look at the history of the Supreme Court, boy, it couldn’t be more different. Think about what the court was doing during slave times. We know in Dred Scott they were upholding slavery. Look what they did after the Civil War, when there was segregation in the South. In Plessy v. Ferguson, they upheld segregation. What did they do during the Progressive Era when the president and Congress really got around to protecting the little guy and the worker? They struck down laws against child labor and upheld the liberty of contract of the bosses. When eugenics was sweeping the country, more than half of the states had eugenic sterilization laws, and the Supreme Court upheld eugenic sterilization. We go to the beginning of the New Deal. When FDR is trying to get the country back on its feet with the Agricultural Adjustment Act and the National Industrial Recovery Act, the court strikes it all down. Then Korematsu, of course, during Japanese internment.
There was a brief period during the Warren era when the court did a lot of good stuff, and for some reason that has become the Supreme Court’s brand, and it shouldn’t be.
The court has in the last 50 years, since the time you’re talking about, seen the cratering of that vision of the Warren court. But it has done really good things in terms of women’s reproductive rights, in terms of marriage equality, in terms of curbing executive powers in wartime. Is there a theory for why the court has actually in some ways continued to do really good things, even into the ’80s and ’90s? Is there a way to parse this that explains why the court just threw up its hands at the end of the ’60s on poverty but continued to do some really important liberty-affording things for a long time after in other areas?
Well, you might just say that in a capitalist system like ours, wealth and money and the current income and wealth distribution are really where the rubber hits the road. Look at how corporations actually have gotten a lot better on things like affirmative action, inclusion, gay rights, and things like that, but they haven’t gotten good at distributing their money to the poor. That’s really the thing that separates the corporate mentality from a more progressive outlook.
It’s just as you say: Yes, the court has actually slowly but eventually championed things like same-sex marriage. They’ve come around. But yes, on the poor, there was a brief period during the Warren era where the court really believed in the problems of the poor and had language that we would never see now about how poor people’s problems are not of their own making, they’re societal problems. That was a brief period when there was a strong liberal majority, but also those liberals were people who’d grown up in poverty themselves. It was a very different court, a very empathetic court. But boy, it was a nanosecond, and we’re far away from that again.
That brings us exactly to where I want to really start. In that nanosecond you describe, the court comes just within a hair of enshrining meaningful, constitutional protections for America’s poor, and then it all collapses. The court changes under Nixon. But I wonder if you could just set the table a little bit and tell us about some of those cases that really were, at least in the rearview mirror, startling in terms of the scope of what the Warren court was trying to do.
One of the most stunning cases from that period is Gideon v. Wainwright. The famous case where the court said that if you can’t afford counsel, counsel must be appointed to you. Now that’s really a striking, huge right because there are so many criminal suspects in the United States if you look at the entire nation. That required every state, every locality to come up with a way to find lawyers for all these poor defendants as a constitutional right. That was huge.
Then throughout the ‘60s, they strike down the poll tax and say that that discriminates against poor people who want to vote. There’s the man-in-the-house rule. This was a very common rule across the country that if the welfare authorities heard even by rumor that a mother had a boyfriend—and the boyfriend could be someone who, as in the King v. Smith case, just visited occasionally, had his own family—that would be enough to throw the children and the mother off of the welfare rolls. The Supreme Court strikes that down. And then as you allude to, in these cases we begin to see language that is suggesting that the court might actually say that poor people in poverty are a suspect classification.
The story on that is that back in the 1930s, in an obscure case called Carolene Products, the court wrote a famous footnote in which they said, “We’re going to start identifying groups that are so excluded from the political process that we need to give them special protections.” Lo and behold, the court starts doing that for religious minorities, racial minorities. What’s remarkable is that in the ‘60s, this nanosecond, the court actually begins to say, “Now, let’s look at poor people and how poor people are placed in America. They actually have these same attributes like racial minorities and religious minorities. Maybe we should make them a suspect class.” If they had, so much could have followed. So many laws might’ve been struck down because they discriminated against the poor.
Another very important case there was Goldberg v. Kelly, which in some ways was the high watermark of poverty law. The court said that it’s not that you have a right to welfare, but if you’re currently receiving welfare, it is so disruptive to your life if the government suddenly takes it away, that you’re entitled to a due process hearing. It was so revolutionary; it was another thing that like the right to counsel, every jurisdiction in the country had to set up a process. How are we going to afford hearings to all these people on welfare if we’re going to take it away? These were very bold, far-reaching decisions.
Then just two weeks after Goldberg, the court issues one of the worst poverty law rulings and everything changes.
This brings us to Richard Nixon and his single-minded obsession with changing the court. He’s monitoring the health of the older justices, and he’s sweeping in his attorney general and federal investigations and putting direct pressure on Earl Warren. He eventually annihilates Abe Fortas’ career at the court. He was gunning for William Brennan; he was gunning for William Douglas. This was really a crusade. Can you talk a little bit about, first of all, what Nixon was doing and how he was doing it? I guess I’m just curious because Fortas keeps popping out in your counterfactual throughout the book, where you say had Fortas remained on the court, X would have happened. It feels as though this is the linchpin.
Yes, indeed. People often ask you when you write a book, “What did you learn?” Some of what I wrote about, I knew already from law school, but the Fortas stuff was really new. Because when I talked to my professors about Abe Fortas, liberals always look down at the ground like it was a big embarrassment. Like, “Oh, he did terrible things. We can’t even mention his name.” That isn’t entirely wrong, but it’s certainly not entirely right.
So yes, Nixon is the key. We have this Warren court, and it’s chugging along doing some of the great stuff we were talking about. Then Nixon’s elected with this vow to really undo the court. And just by a little bit of luck and a lot of scheming, he gets to appoint four justices in three years, which is remarkable. That’s one of the biggest turnovers in court history and totally redirects the court. Some of it was luck that he comes in and the chief justiceship is opening up because Warren had already said he was leaving, and some other justices are in poor health that eventually leave.
But one of the key moments in the court’s history is Nixon driving Abe Fortas off the court. Now, Fortas was not an angel by any means and he did some things that I think you and I would say were not good practice for a justice. But the main thing that Nixon got him on was taking some fees to consult for a foundation while he was on the court. Now, other justices have done that; other judges were doing that at the time. There was no prohibition. As we know, there’s actually no set of ethics rules for the court, it’s self-enforcing. But Nixon used that to threaten him with prosecution and, even worse, to threaten his wife. She was a lawyer at the same firm he was at. She’d been investigated for some possible impropriety and was cleared. But Nixon threatened to put both of them in jail, and he succeeded in getting Fortas off the court. Fortas was probably not wrong to leave, in that the Nixon Justice Department really might’ve put them both in jail. So there was some self-preservation going on there.
But that gives Nixon crucially one more seat, the fourth of the four seats. When I look at some of the cases in the next few years, some of the most heartbreaking cases, including one very close to my heart, which is Rodriguez v. San Antonio School Board. The court came within one vote of saying that school funding in every state in the country had to be equal; we couldn’t fund rich school districts more than poor school districts. That was 5–4, and if Fortas had not been driven off the court through real shenanigans and illegality by Nixon, that fifth liberal vote would have been there to give poor kids all across America a better start in life. I think it is really one of the great tragedies in Supreme Court history.
One of the things that really struck me reading about Fortas was just the irony that the things he was being tagged for—doing this lectureship at a law school that was paid and doing consulting for a guy with very shady associations. Fortas is tagged for enriching himself in inappropriate ways, and then this becomes the catalyst for a court that goes on to enrich the wealthy. It’s really striking that the claim against Fortas is that he’s doing something hinky with his financial affairs and that gives birth to the entire arc of the story that gives us the plutocracy we live in today.
Totally right. The lectureship you mentioned, it was thousands of dollars, and you look at the millions and billions and trillions of dollars that have flowed from some of the court’s rulings. And yes, it was penny ante, another irony. There’s so many said ironies: The people threatening to put Fortas in jail for being unethical themselves went to jail. Attorney General John Mitchell was the leader of this, saying, “How could we possibly allow Fortas to accept this small amount of money?” And then Mitchell ends up in jail for Watergate crimes.
There’s so many levels of irony, but what’s really sad from our perspective is there are these actual poor school children in poor districts around the country who really should have had this ruling, should have had more funding for their schools. It was the Nixon machine that really cheated them and led to them being deprived of a lot of educational opportunity.