In 1938, the most famous footnote in American law appeared in the Supreme Court decision of an otherwise obscure case, United States v. Carolene Products. When a piece of legislation imposed a special burden on “discrete and insular minorities,” the justices suggested, courts would apply “a more searching judicial inquiry.” Footnote 4 specifically mentioned “racial, religious, or national minorities,” but implied more groups might be included, as well.
Adam Cohen, a former member of the New York Times editorial board and the author of “Imbeciles: The Supreme Court, American Eugenics and the Sterilization of Carrie Buck,” believes that poor people should be one of those protected classes. In the 1960s, he indicates, the court led by Chief Justice Earl Warren came close to declaring they were entitled to the special status afforded racial and religious under the Equal Protection Clause of the 14th Amendment.
In “Supreme Inequality,” Cohen makes a passionately partisan and powerfully persuasive case that in the half-century since Warren retired, the court has ceased trying “to lift the boots of oppression off the necks of the poor” and moved “unrelentingly to protect the wealthy and powerful.”
To document the court’s abrupt about-face (facilitated by what he regards as the dirty tricks of Republicans, from Richard Nixon to Mitch McConnell, to pack it with conservatives), Cohen provides an informative and detailed analysis of dozens of cases involving education, campaign financing, voting rights, employment discrimination, collective bargaining, punitive damages, class-action suits, health care and criminal justice. The court’s decisions, many of them 5-4, he emphasizes, have consistently increased inequality, and made the United States less inclusive, democratic and just.
A few examples. Cohen reveals that in Ledbetter v. Goodyear Tire & Rubber Company (2007), the court ruled that Lilly Ledbetter had filed her salary discrimination case too late, even though she had no way of knowing she did not make nearly as much as her fellow managers, all of them male, until she received an anonymous note.
In Walmart v. Dukes (2011), the court ruled that a class-action suit could not go forward unless all the litigants suffered “the same injury,” defining “same” quite narrowly; subsequent decisions affirmed the right of corporations to require customers to sign mandatory arbitration agreements. Decisions on partisan gerrymandering, voter ID, and voter roll purges have reduced the likelihood that poor people will cast ballots. And the court effectively ended efforts to equalize school funding.
Convinced that our inequality trajectory is not sustainable, Cohen concludes with a plea for a judiciary, like the Warren Court, willing to use the Equal Protection Clause to ensure that federal programs actually take care of the Americans who need them.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University.
By: Adam Cohen.
Publisher: Penguin Press, 416 pages, $30.