Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America

By Adam Cohen

Penguin Press, 448 pages, $30  

Since 1968, Republican Party candidates have won eight of 13 presidential elections. Over that time, GOP presidents have appointed each of the past three chief justices of the Supreme Court and filled 12 of the court's last 16 open seats. Of those 12 GOP appointees, nine have consistently decided cases in a manner that furthers a conservative agenda. Consequently, for the past 50 years, conservatives have dominated large portions of the high court's docket, particularly in cases involving poverty, education, campaign finance, voting rights, workers' rights, class actions, the rights of corporations, and criminal justice.

In an important new book written for mass readership, Adam Cohen analyzes the legacy wrought by this half-century of conservative dominance. Cohen is an accomplished writer, former president of the Harvard Law Review, staff attorney for the Southern Poverty Law Center and ACLU, editorial board member of the New York Times, and author of four books dealing with diverse subjects such as former Chicago Mayor Richard Daley, eBay, President Franklin Roosevelt, and the eugenics movement's influence on American law.

According to Cohen, the post-1968 conservative justices set out to conduct a general spring-cleaning of constitutional law, following as they did the liberal Warren Court. As convincingly demonstrated throughout the book, the conservative justices have produced over time a sweeping jurisprudence that has promoted inequality, shielded corporations, preserved the status of the privileged, peeled back workers' rights, enabled big money to dominate politics, diluted the rights of the accused, vitiated measures designed to protect the voting rights of minority communities, and legitimized GOP-sponsored measures that aim to disenfranchise voters who tend to support the Democratic Party. As such, this is a book is about power.

Between 1953 and 1969, Chief Justice Earl Warren presided over a Supreme Court that distinguished itself with decisions that protected the poor, racial minorities, voting rights, due process rights of criminal defendants, press freedom, free speech, and reproductive rights.

Beginning in the early-1960s, however, violent crime rates spiked throughout the country. Although the causes were many, conservatives blamed the Warren Court. One of those conservative critics was Warren Burger, then an outspoken judge of the D.C. Circuit Court. During the 1968 presidential race, Republican Richard Nixon ran as a purported "law and order" candidate, promising voters that he would appoint justices who would reverse the Warren Court's excesses.

As observed by the author, in 1968 liberals controlled the Supreme Court. By June 1968, however, Warren wanted to retire. Meanwhile, Nixon inched closer to capturing the GOP presidential nomination. Alarmed that Nixon might be the one to appoint his successor, Warren informed President Lyndon Johnson, a Democrat, of his impending retirement, knowing that Johnson would likely appoint a progressive as the new chief justice. To date, Johnson had appointed two associate justices, Abe Fortas and Thurgood Marshall, who were both staunch liberals. With Warren's replacement, Johnson expected to continue and extend the nearly four-decade domination of the Court by appointees of Democratic Party presidents.

But, it was not to be. By mid-1968, Johnson had already announced that he would not run for re-election. As a lame duck, his influence with Congress was waning. Plus, he had powerful enemies on the Senate Judiciary Committee, populated as it was by southern conservatives who resented Johnson's passage of the Civil Rights Act (1964) and the Voting Rights Act (1965).

In one of his greatest blunders, Johnson nominated a crony, Fortas, to replace Warren as chief justice. The choice was controversial. Pushing back, the Judiciary Committee probed Fortas's alleged ethical lapses and liberal proclivities, which in turn produced a filibuster that doomed the nomination just six weeks before the election. By then, it was too late to nominate another candidate. Thus, Warren's successor would be appointed by Johnson's successor, who turned out to be Nixon. In early 1969, Nixon appointed the conservative Burger to the chief justiceship.

But, Nixon wasn't satisfied, and neither was his Attorney General, John Mitchell. For conservatives to control the Supreme Court, Nixon needed additional appointments. An unseemly abuse of power followed. One of the compelling parts of the book describes Justice Department "political investigations" commenced by Mitchell in 1969 to pressure three liberal justices (Fortas, William Brennan, and William O. Douglas) to leave the Court so that Nixon could replace them with conservatives.

Mitchell's machinations prompted Fortas to quit, providing Nixon with a second appointment to the Court. Although Brennan and Douglas withstood Mitchell's power play, age and frailty soon caught up to two other justices, Hugo Black and John Marshall Harlan, whose successors Nixon appointed during the 1971-72 Term. Thus, just three years into Nixon's tenure, he had made four Supreme Court appointments. Along with Justice Potter Stewart, who had been appointed in 1958 by President Dwight Eisenhower, the Nixon appointees now formed a conservative majority. Since then, conservative justices appointed by GOP presidents have controlled the Supreme Court for almost five decades.

The best part of the book examines how the Burger Court turned away from protecting the weak and poor, who had benefited from Democratic presidents and Warren Court rulings.

During the administrations of Presidents John F. Kennedy (1961-63) and Johnson (1963-69), economic growth and anti-poverty programs cut almost in half the number of U.S. families who lived below the federal poverty level. Meanwhile, as described in the book, the Warren Court issued several decisions that protected the poor, including Griffin v. Illinois (1956) (enabling poor criminal defendants to appeal convictions without having to pay for expensive trial transcripts), Gideon v. Wainwright (1963) (ensuring poor criminal defendants had a right to counsel), Douglas v. California (1963) (ensuring poor criminal defendants had counsel as to their first appeal), Harper v. Virginia Board of Elections (1966) (striking down poll taxes as discrimination against the poor), King v. Smith (1968) (overturning the man-in-the-house rule, which threatened the welfare benefits of 500,000 poor children), and Shapiro v. Thompson (1969) (striking down state durational residency requirements for collecting welfare benefits).

As adroitly pointed out by the author, however, these cases involved activities that already enjoyed some measure of constitutional protection. Although the Warren Court had protected the poor's ability to participate in these activities equally, it was equivocal as to whether it was willing to take the "larger step" of protecting the poor against discrimination more generally. Nevertheless, after Shapiro, poverty lawyers hoped that the Court might eventually recognize "that every American had a constitutional right to a minimum level of economic support."

The Nixon Administration and the Burger Court put these aspirations to rest. During Nixon's first term, "anti-poverty benefits" came under fire, as increased inflation, a weak dollar, sluggish growth, and dwindling gold reserves wracked the economy. Reducing poverty was not a Nixon priority. By 1973, the decline in the poverty rate had stopped.

Meanwhile, in 1970 the Burger Court began issuing decisions against the poor in welfare rights, public housing, and mandatory court filing fees cases that refused to recognize the poor as a "discrete or insular minority," much less as a suspect class. In the years to come, the Court consistently refused to recognize a constitutional right to subsistence, and laws that adversely affected the poor were reviewed deferentially under the rational basis standard. Since Burger's appointment, conservative justices have concluded that the Court has no business questioning decisions that the legislature reaches about aid to the needy.

In stark contrast, the conservative justices have been activists in repeatedly questioning decisions that the legislature has reached about campaign finance reforms. Another strong part of the book analyzes the conservatives' consistent favoring of the wealthy and powerful in the campaign finance cases.

In 1974, Congress passed sweeping amendments to the Federal Election Campaign Act, which adopted limitations on individual contributions and a separate $1,000 limit on independent expenditures "relative to a clearly identified candidate." As noted by the author, the 1974 reforms were adopted to promote integrity in elections and check the corrosive effect of big money in politics.

In Buckley v. Valeo (1976), however, the Court struck down the limit on independent expenditures and ruled that spending to influence elections constituted "free speech" protected by the First Amendment. In so doing, the Court recognized that promoting electoral integrity was a valid legislative aim, but not the check of the undue influence of wealth on democracy. As noted by economist Richard Parker, this decision opened "deep business coffers" and set off a "race in political contributions that remade the American political landscape."

In 2002, Congress passed bipartisan campaign finance reform designed to ban phony issue ads and close soft-money loopholes that permitted corporations, wealthy individuals, and labor unions to contribute unlimited amounts to political parties. In McConnell v. Federal Election Commission (2003), the Court upheld the law in a 5-4 vote, with Justice Sandra Day O'Connor voting with the majority. In 2006, however, O'Connor retired and was replaced by Justice Samuel Alito, a conservative who took a dim view of the 2003 decision.

In Citizens United v. Federal Election Commission (2010), the five conservative justices reversed McConnell by a 5-4 vote, with Alito in the majority. In so ruling, the conservatives not only struck down that portion of the 2002 law that prohibited corporate expenditures on campaigns, but they also "opened the floodgates to unlimited amounts of corporate money in politics." According to the author, with this decision "the Court ensured that the wealthiest and most powerful people and institutions in society would have an almost insurmountable level of control over government."

The book raises the question of what is to be done about the Court's conservative majority. Two things seem evident. First, only a Democratic Party president will appoint progressives to replace conservatives. Thus, Democrats have to start winning the White House a lot more frequently than they have since 1968. Second, the "rule of law" is still important. In its support, the legal profession has an obligation to act and speak. This obligation was articulated best by former Attorney General Robert F. Kennedy, who in a May 1964 speech at the University of Chicago Law School observed that if the rule of law is to prevail, the legal profession must combine its intellectual and ethical energies to champion the individual sanctity and worth of rich and poor alike.

Jeffrey M. Winn is an attorney with Chubb, a global insurer, and a member of the executive committee of the New York City Bar Association.