The Supreme Court Sides With the Powerful
Over the past half century, ruling against the vulnerable has been the norm in almost every area of the law.
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.
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.