The composition of the U.S. Supreme Court is a key area of dispute between Republicans and Democrats. I share the concern, but for rather different reasons than most of the people vocally involved in this debate.
It’s clear that Trump’s cult will sacrifice fundamental fairness and a competent (or even barely functional) federal government in return for reversal of Roe v. Wade. I have increasingly come to file that possibility under “be careful what you wish for”–not only would abortion still be available in blue (and probably purple) states, but the backlash would be profound; it’s hard to think of any other ruling that would activate more more opponents of the fundamentalist cult that is today’s GOP.
My concerns with the Supreme Court are grounded in its less obvious and more dangerous retreat from the civil liberties jurisprudence of the Warren Court. The current Court’s most predictable bias can be seen a steady stream of decisions favoring the rich and powerful over the poor and disenfranchised.
A recent book by Adam Cohen–Supreme Inequality— is one of the emerging discussions of that bias. An article in Time Magazine by Cohen outlined the book’s central thesis–the conservative Court’s “deep and abiding sympathy” for the rich. That sympathy is a hugely consequential change from the 1960s, when the Warren Court protected the rights of the poor–from welfare recipients’ right to due process to poor defendants’ right to appointed counsel in criminal cases.
As Cohen documents, however, for the past 50 years, “the Court’s sympathies have been the reverse: on one legal doctrine after another, it has expanded the rights of wealthy individuals and corporations.”
After the Warren Court, Nixon was able to appoint conservatives who shaped the Court we have today. Cohen provides striking examples of the consequences.
One of the first groups the new conservative Court came to the rescue of was rich children, or at least children in wealthy school districts. There was a growing consensus among lower federal courts, state courts, and law professors that the Equal Protection Clause required states to equalize spending between rich and poor school districts. In 1973, however, the Court, by a 5-4 vote, declared that Texas, and other states, had the right to spend more money on children in rich districts than children in poor ones.
As a result of that decision, today there are gaping disparities in school spending nationwide. An analysis of funding in Pennsylvania a few years ago found that one wealthy district spent more than three times as much as the state’s lowest-spending district. In the aggregate, these disparities mean that children from wealthy families across the country begin life with greater educational opportunities, and a better chance at success later on.
Other decisions that elevate the interests of the privileged over others include Citizens United and its forerunners–rulings that gave rich people and corporate “people (!)” a disproportionate voice in American politics.
Cohen isn’t the only person to notice. This week, James Dannenberg resigned from the Supreme Court Bar in a letter to Chief Justice John Roberts that has been widely published. Dannenberg has been a member of that bar since 1972. His letter compares the current Supreme Court, with its solicitude for the rights of the wealthy, privileged and comfortable, to the widely-reviled Lochner court of the early 20th century that favored big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.
Dannenberg pulled no punches.
You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
When a respected member of the Supreme Court bar questions the Court’s commitment to the rule of law, it’s an ominous sign.
The question is, as always, what should we do?
We should certainly think very seriously about the recommendation by legal scholars that the number of Justices be increased–a recommendation that long preceded the current administration.
And most obviously, we need to vote blue up and down the ticket, to ensure that people who will be elevated to the court in the future are “throwbacks” to the Warren Court, rather than pro-plutocrat right-wingers.