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President Donald Trump appears eager to accelerate the cycle of inequality. His judicial nominees are, if anything, more reactionary than Nixon’s, hungry to tighten the richest Americans’ stranglehold on democracy while permitting the oppression of women, minorities, and poor people.
Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America
By Adam Cohen
Penguin
Democracy and Equality: The Enduring Constitutional Vision of the Warren Court
By Geoffrey R. Stone and David A. Strauss
Oxford University Press
From 1953 to 1969, the Supreme Court undertook a sustained assault on America’s racial apartheid, dismantling Jim Crow and transforming the federal judiciary into a bulwark of individual liberty. Then Richard Nixon assumed the presidency—and the Court’s crusade screeched to a halt. Chief Justice Earl Warren, who led the Court’s “rights revolution,” stepped down, followed by three more justices, allowing Nixon to reshape the Court into a body that not only tolerated oppression but actively thwarted democracy. The Supreme Court is best known for its expansion of personal freedom in cases like Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges. But these highlights can obscure the Court’s role as a dangerously reactionary institution in the half-century since Warren retired.
As Adam Cohen shows in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, the beginning of this retreat from Warren’s grand vision can be largely attributed to Nixon himself. In 1968, Nixon ran as a law-and-order candidate, criticizing the Warren Court’s criminal justice decisions, which dramatically expanded the rights of the accused. When he took office, Nixon wasn’t content to replace Warren, who announced his plans to retire before the election. He also wanted to take down Justice Abe Fortas, a liberal Lyndon B. Johnson appointee. Like most justices today, Fortas made money on the side: He taught a summer seminar at American University Law School and provided advice to a civil rights foundation, earning a handsome paycheck for both gigs. There was nothing remotely illegal about Fortas’s work, but Nixon instructed his attorney general, John Mitchell, to investigate Fortas anyway.
Mitchell turned up no incriminating evidence, but he leaked the investigation to stir up bad press for Fortas. He also visited Warren at the Supreme Court, an astonishing breach of protocol, and convinced the chief justice that his colleague behaved unethically. Warren pressured Fortas to resign, which he did. The chief justice then stepped down—followed in 1971 by the ailing Justices Hugo Black (a liberal) and John Marshall Harlan (a moderate conservative). Nixon appointed four justices in a single term.
To Cohen, Nixon’s Fortas squeeze is the original sin of the modern Supreme Court. Had Fortas remained on the bench, a slew of 5-4 decisions over the next decade would likely have come out differently. Those include some of the most devastating rulings of the 1970s. In San Antonio Independent School District v. Rodriguez, the Court allowed states to underfund schools in poorer districts, damning lower-income children to inferior education. In Milliken v. Bradley, the Court kneecapped school integration, tolerating the resegregation of urban schools through white flight. And in First National Bank of Boston v. Bellotti, the Court granted corporations a First Amendment right to spend money influencing elections, a decision that laid the groundwork for Citizens United.
Nixon’s Supreme Court appointees also renounced a major project that the Warren Court had launched in its waning months: establishing constitutional protections for the poor. In April 1969, the justices handed down Shapiro v. Thompson, which prohibited states from denying welfare to new residents. On the surface, Shapiro was a case about the right to travel. But Justice William Brennan’s majority opinion went beyond that issue, suggesting that the Equal Protection Clause also safeguards individuals’ right to access “the very means to subsist—food, shelter, and other necessities of life.” These words raised the possibility that the Constitution affirmatively required states to provide these “necessities” to their residents.
Cohen persuasively argues that this reconstituted Supreme Court helped to create the income inequality that has become a defining (and grotesque) feature of contemporary America.
Shapiro, Cohen notes, augured an earthquake in welfare law that never arrived. Had Fortas stayed on the Court, Brennan might have had a five-justice majority to declare a full-throated right to welfare, forcing states to provide impoverished residents with adequate food, housing, and cash. Instead, the court promptly abandoned poor people. Nixon’s appointees upheld vicious assaults on low-income communities, allowing states to starve needy families by denying them meaningful assistance. These justices also blessed state schemes that denied destitute individuals access to the justice system by coercing them to pay court fees they could not afford. And they stripped these people of procedural rights, making it easier for states to arbitrarily kick them off welfare.
Cohen persuasively argues that this reconstituted Supreme Court helped to create the income inequality that has become a defining (and grotesque) feature of contemporary America. His trenchant, gripping, and surprisingly accessible account guides readers through a slew of ruinous rulings that warped the Constitution. In decisions like Milliken and Rodriguez, the conservative majority broke Brown’s great promise of educational equality, condemning poor children to subpar, often segregated schooling. (Cohen acknowledges that, in 25 states, courts have ordered fairer school financing, and yet these states’ educational systems remain unequal. He blames the Supreme Court for failing to “put its power and prestige behind equal school funding,” arguably overestimating state legislators’ respect for federal court orders.) In decisions like Bellotti, the justices allowed wealthy people to capture the political system, spending millions to rig the government in favor of corporate interests. And in the welfare cases, the court doomed countless Americans, including children, to poverty, homelessness, and starvation.
It is a cycle that continues to this day, and one that Donald Trump appears eager to accelerate. His judicial nominees are, if anything, more reactionary than Nixon’s, hungry to tighten the richest Americans’ stranglehold on democracy while permitting the oppression of women, minorities, and poor people. Many of Trump’s nominees are members of the Federalist Society, a conservative network of lawyers keen to roll back the perceived excesses of the Warren Court. These judges espouse the theory of originalism, insisting that the Constitution must be given the meaning it had when it was first written.
The rise of originalism has cast doubt on the Warren Court’s most famous decisions. Federalist Society judges often malign these rulings as borderline illegitimate, nothing more than policy-driven legislating in the guise of judicial interpretation. In Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, Geoffrey R. Stone and David A. Strauss seek to rescue Warren’s reputation, defending his legacy against his influential detractors. Their book is engaging and enlightening, and much less depressing than Cohen’s—even though it winds up in roughly the same place.
Stone and Strauss’s mission is not particularly fashionable today, even in liberal circles. Progressive groups such as the Constitutional Accountability Center have claimed originalism for the left, accusing conservatives of manipulating the theory to smuggle Republican aims into the law. Few prominent jurists or scholars now espouse “living constitutionalism,” the theory that constitutional commands must be interpreted in light of present-day circumstances, so thoroughly has the Federalist Society trashed its reputation. When Democrats convened a panel of experts to defend the legal basis of Trump’s impeachment, each panelist sought to channel the intent of the Founders; each laid claim to an originalist understanding of how the framers of the Constitution understood impeachment. It is telling that none even attempted to argue that we should adjust our conception of “high crimes and misdemeanors” to modern forms of corruption.
But many of the Warren Court’s most revered decisions are impossible to square with originalism, even the forward-looking kind espoused by many progressives. That fact, Stone and Strauss argue, should be celebrated, not ignored or concealed. To them, the Warren Court articulated a kind of living constitutionalism that is not only legitimate but necessary to safeguard the nation’s core beliefs. Hardcore originalism, Stone and Strauss make clear, is a recipe for the rampant discrimination that Warren fought to eradicate.
The best examples of this problem are the Warren Court’s two best-known race cases: Brown v. Board of Education, forbidding school segregation, and Loving v. Virginia, invalidating interracial marriage bans. Neither opinion is remotely defensible on the basis of originalist theory as espoused by conservatives, though some right-leaning scholars have made feeble attempts. The Congress that passed the 14th Amendment, the basis of both rulings, approved of segregated schools in the District of Columbia. Moreover, as Eric Foner, the preeminent scholar of Reconstruction, has shown, whites’ opposition to “miscegenation” was nearly universal in the 1860s, even among Radical Republicans. The men who drafted the 14th Amendment, as well as their constituents, understood “social rights” like marriage to fall outside the scope of its equality guarantee. Virtually every citizen who supported the amendment at the time of its passage would have been appalled and disgusted by Loving.
Neither Brown v. Board of Education nor Loving v. Virginia is remotely defensible on the basis of originalist theory as espoused by conservatives.
Does that mean Loving was an illegitimate decision? To the contrary, Stone and Strauss write: Loving, like other Warren Court landmarks, was “principled, lawful, and consistent with the spirit and fundamental values of our Constitution.” Stone and Strauss cite Justice Harlan Fiske Stone’s famous Footnote Four in U.S. v. Carolene Products as the basis for Warren’s approach to the Constitution. Courts, Justice Stone wrote, should generally defer to the democratic branches by upholding duly enacted laws. But when legislation “restricts … political processes” or discriminates against “discrete and insular minorities,” it must be subject to “more searching judicial inquiry.”
This principle animates the Warren Court’s best decisions. That includes Brown and Loving, which involved laws that ostensibly applied equally to whites and blacks but, in reality, degraded racial minorities. It justifies the Court’s redistricting rulings, which enshrined “one person, one vote” into the Constitution, despite a tradition of malapportionment stretching back to the founding. And it lies behind the Court’s criminal procedure cases, like Mapp v. Ohio (demanding the suppression of illegally obtained evidence at trial), Gideon v. Wainwright (ordering states to provide counsel to indigent defendants), and Miranda v. Arizona (requiring police to inform suspects of their rights). Stone and Strauss illustrate how Southern states maintained Jim Crow through the criminal justice system, subjecting impoverished blacks to illegal searches and violent interrogations, convicting them at sham trials, then stripping them of their liberty. Obviously, the Court did not eliminate racism among police and prosecutors. But it did curtail these officials’ most extreme and brutal constitutional violations.
Like Cohen, Stone and Strauss bemoan the post-Warren cases that disavowed the judiciary’s duty to enforce broad conceptions of liberty and equality. They also point out a few cases, like Roe (recognizing a right to abortion access) and Obergefell (protecting same-sex couples’ right to marry) that follow in the Warren Court’s footsteps. But these rulings were anomalies when they came down. And they are under serious threat today, as Trump has replaced the sometimes-liberal Justice Anthony Kennedy with the arch-conservative Justice Brett Kavanaugh.
A great deal of opposition to Kavanaugh’s confirmation—before Christine Blasey Ford’s explosive allegations of sexual assault, at least—centered around his hostility to abortion rights. Kavanaugh, however, will do more than erode or overturn Roe. He is also poised to further dismantle campaign-finance regulations, allowing plutocrats and corporations to buy elections, while tolerating flagrant voter suppression that tends to benefit Republicans. In 2019’s Rucho v. Common Cause, Kavanaugh cast the fifth vote barring voters from challenging partisan gerrymandering in federal court. That decision went directly against the spirit of the Warren Court’s “one person, one vote” rulings, allowing lawmakers to dilute votes cast for their opponents. Meanwhile, Kavanaugh may soon strike down limits on contributions to candidates, letting the ultra-rich purchase politicians, as well as disclosure rules, allowing them to do so in secret.
The conservative majority that took shape after Warren retired set in motion a stratification of rights, giving the wealthy more control over governance while locking everybody else out of the political process. Kavanaugh may usher in a new, even more radical phase of that slow-burning revolution. Cohen, Stone, and Strauss urge us to reject conservatives’ partisan originalism and fight for a return to Warren’s equality-based Constitution. But their books are less a rallying cry than a eulogy for the egalitarian democracy envisioned by the Warren Court and betrayed by its successors.
