Supreme inequality: The Supreme Court’s Fifty-year Battle for a More Unjust America. Adam Cohen
Despite its idealized image, the reality of the US Supreme Court throughout its history is that it has been a protector of the rich and powerful. It sided with slaveholders before the Civil War, upheld Jim Crow repression and segregation in the South after the Civil War, ruled against laws protecting workers in the Progressive Era, struck down early New Deal programs during the Great Depression, and endorsed Japanese internment camps during World War II.
The Warren Court of 1953 to 1969 provided a brief exception. Particularly from 1962 to 1969, after a strong liberal majority was achieved, the Warren Court championed the poor, working people, and racial minorities to build a more equal and inclusive America. It ruled against school segregation (Brown v. Board of Education) and recognized rights of poor people, rights of unions, rights protecting welfare recipients, rights of non-Christians, and rights of criminal defendants (Miranda, etc.). It developed a model called “strict scrutiny” to give extra protections to groups most discriminated against and least able to protect themselves.
Predictably, these changes provoked a strong backlash of bitter opposition. When Richard Nixon became president in 1969, he immediately moved to destroy the Warren Court and everything it had achieved. He managed to appoint four conservative Justices to the Court. One of these was Lewis Powell Jr., a former corporate and tobacco lawyer, whose infamous, militantly pro-business 1971 “Powell Memo” distributed by the Chamber of Commerce was unknown by the Senate at the time of his confirmation.
Also, Nixon was able to appoint archconservative Warren Burger as Chief Justice because the position remained open after Lyndon Johnson’s choice of Abe Fortas to replace Earl Warren was blocked by a Republican filibuster. One of Nixon’s four appointments was enabled when Fortas was later driven from the court by harassment from Assistant AG William Rehnquist. Eventually, the markedly conservative Rehnquist became Nixon’s fourth appointment to the Court. Thus the Warren Court was killed off and replaced by the Nixon Court.
The post-1969 Court changed directions almost immediately, and these changes have more or less persisted through the following five decades until today. During this time, there have been only conservative Chief Justices, and they have consistently had conservative majorities behind them. For the justices who left since the mid-1960s, the six most conservative were replaced by Republican presidents, but only one of the six most liberal was replaced by a Democratic president. This sequence is partly related to Republican hard-ball tactics, from using the filibuster and harassment against Abe Fortas to denying a Senate vote on Merrick Garland for the last year of the Obama presidency.
The conservative justices have been extraordinarily pro-business. In 2013, the five conservative justices were all among the top ten most pro-business since 1946, and Alito and Roberts were in first and second place. Consequently, the Court has issued numerous pro-corporate rulings and established special protections for corporations by extending the 14th Amendment “due process” clause meant for freed slaves to corporations. Meanwhile, it has repeatedly reversed the protections for ordinary citizens and especially for the poor and disabled, for whom it declined use of the Warren Court’s “strict scrutiny” category.
The past fifty years of conservative rulings from the Supreme Court have coincided with the period of US soaring inequality to near-historic levels. By 2014, 20% of all income went to the top 1% and only 12.5% went to the bottom 50%, and the richest 0.1% owned as much as the bottom 90%. Globalization and automation were contributing factors, but policy choices by US government, supported by Supreme Court rulings, were a central factor (compared to Europe, where similar inequality did not arise).
These policy choices included tax cuts for the rich, massive education inequalities, failure to regulate business and finance, undermining unions, and mean-spirited welfare reform. The Court contributed by many rulings, such as those that enhanced corporate and top executive profit, weakened unions, gutted campaign finance law to favor the wealthy, gutted voter protection to favor Republicans, and facilitated markedly increased incarceration that has devastated minority families.
The author documents his findings by reviewing an exhaustive list of partisan rulings during the last fifty years that are mostly split decisions of the conservative majority over the liberal minority to favor corporations, the wealthy, and Republican minority rule. This list is far too long to be included in a brief review. However the rulings are organized into categories, which will be noted, and a few examples of individual rulings will be provided:
- Turning against the poor:
1970 Dandridge ruling: By a 5-3 vote, Court conservatives abandoned “strict scrutiny” that gives extra protections to the poor in favor of the more lenient “rational basis review”. Also, the ruling caused great hardship for children in large welfare families by upholding caps that didn’t consider family size.
1996 welfare reform: AFDC was replaced by TANF that reduced beneficiaries from 12 million to 3 million and doubled the number of persons in deep poverty, a change that went unchallenged due to previous Court rulings.
2012 Sebelius ruling: By a 5-4 vote (with Roberts joining the liberals), the Court upheld the individual mandate of the ACA but conservative dominance overturned the requirement for federally funded expansion of state Medicaid and led to withholding of this benefit in fourteen Republican states that resulted in an estimated 15,600 needless deaths.
- Education:
1973 and 1974 Rodriguez and Milliken rulings: By 5-4 and 5-4 votes, the Court conservatives again abandoned “strict scrutiny” in favor of the more lenient rational basis review. Thus it overturned lower court findings that public education systems had failed to equalize educational opportunity due to unequal funding for the poor and inadequate desegregation plans for minorities. The 2018 World Inequality Report by Piketty and others found massive educational inequalities to be one of the two primary causes of the United States’ “income-inequality trajectory”.
- Campaign finance:
1976 Buckley ruling: By a per curium (unsigned) ruling with several partial dissents, the Court overturned earlier campaign finance laws by finding that money was speech, creating the paradox that you are entitled to the amount of free speech you can afford to buy. Unsurprisingly, by 2012, the top 0.04% bought as much “free speech” (and political influence) as the entire bottom 68%.
2010 Citizens United ruling: By a 5-4 vote, Court conservatives gutted McCain-Feingold campaign finance reform by declaring that contributions by corporations and the super-rich could be unlimited and anonymous. Thus the already enormous influence of corporations and the super-rich was greatly enhanced by limitless funding of Super PACs and untraceable “dark money”.
- Democracy:
2000 Bush v. Gore ruling: By a 5-4 strictly partisan vote, Court conservatives stopped the Florida vote recount and handed the presidency to Bush. This was done despite a pre-election voter purge by elected Republicans that wrongly removed an estimated 4,725 black Gore voters mislabeled as felons in an election Bush won by just 537 votes. The US Commission on Civil Rights concluded that this voter removal was likely “outcome determinative”.
2013 Shelby County ruling: By a 5-4 vote, Court conservatives facilitated Republican minority rule by gutting the seminal 1965 Voting Rights Act, which in 2006 had been reauthorized by 99-0 in the Senate and 390-33 in the House and signed by President Bush. The essential provision for preclearance of new voting laws by states with a history of abuse was overturned. This was done with the bizarre justification that it was no longer needed since abuses by these states had decreased as a result of its use. Justice Ginsburg objected that this “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
- Workers:
2007 Ledbetter, 1989 Antonio, 2009 Gross, 2011 Wal-Mart, and 2013 Vance rulings: By 5-4, 5-4, 5-4, 5-4, and 5-4 votes, the Court conservatives ruled against worker’s claims of sex discrimination in pay, racial discrimination in job assignment, age discrimination, class action sex discrimination, and racial harassment.
2018 Janus: By a 5-4 vote, Court conservatives ruled against mandatory agency fees for public sector unions. This and many other rulings against unions contributed to the 1973 to 2007 decline of private-sector union membership from 34 to 8% for men and from 16 to 6% for women. A Harvard and University of Washington study concluded that union loss contributed as much as one-third to the growth of US inequality during this period.
- Corporations (rulings that advanced corporate goals to limit punitive damages, limit class actions, favor forced arbitration, and limit environmental and other regulation):
2008 Exxon Valdez: By a 5-3 vote, Court conservatives plus Souter (Alito was recused) ruled to limit punitive damages to a 1:1 ratio for this enormous corporate fiasco.
2013 Comcast: By a 5-4 vote, Court conservatives denied class action status to Comcast subscribers in their suit claiming $875 million of overcharges in violation of anti-trust laws.
2000 Green Tree: By a 5-4 vote, Court conservatives ruled to enforce forced arbitration based upon a faulty clause.
2009 Coeur Alaska: By a 6-3 vote, Court conservatives plus Breyer ruled that a mining company pumping toxic wastewater into an Alaska lake could disregard Environmental Protection Agency regulations.
- Criminal Justice:
1987 McCleskey: By a 5-4 vote, Court conservatives ruled against challenges to sentencing based on racial discrimination, despite a great deal of evidence of enormous differences related to race.
Numerous rulings weakening Miranda, Mapp, and Gideon (warning against self-incrimination, exclusionary rule for search without reasonable cause, and right to competent counsel).
Rulings supporting abuses of plea bargaining, harsh sentencing, and unprovoked checks for trivial outstanding warrants to justify searches: These rulings coincide with the rapid rise of US mass incarceration, with rates per 100,000 that have increased from 100 in the 1970s to 698 today. The US has only 4.3% of the world’s population, but 22% of its prisoners.
White Collar Paradox: Conservative justices are more sympathetic to defendants with wealth and power than liberals—Scalia and Rehnquist voted in favor of defendants in 7% and 8% of non-white-collar criminal cases and in 82% and 62% of white-collar cases.
Sadly, these findings reveal the Supreme Court to be just another political branch that can be counted upon to create the illusion of legal scholarship to impose outcomes desired by the politicians who appointed them. For the last fifty years, the resultant conservative majority of the Court has waged an unrelenting war on the poor and the middle class and enthusiastically championed wealthy individuals and corporations—and changed the law dramatically to suit its vision of society.
This sequence advances the long standing conservative goal of rolling back progress the nation made in the 1960s. However, for many conservatives, the drive for epochal change is even more focused on what has always been the real battleground—the gains of the New Deal. Their targets include Social Security, federal welfare programs, the federal minimum wage, a federal right to unionize, and federal regulatory agencies. Under only slightly different political circumstances, the work of the Warren Court could have continued to create a society with more equality, inclusion, and opportunity for all.
