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“Supreme Inequality”: Author Adam Cohen on the Supreme Court’s 50-Year Battle Against Justice

The point I make in this book is that the Supreme Court, which is an institution that we think of as the bastion of fairness, the advocate for the underdog, has actually been a major driver of inequality.

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The makeup of the U.S. Supreme Court has come under intense criticism in recent years after two Trump-nominated justices joined the bench. Senate Republicans confirmed Neil Gorsuch in 2017 after having refused to consider President Barack Obama’s nominee in his final year in office, and they confirmed Brett Kavanaugh a year later despite multiple allegations of sexual misconduct against the judge. During the 2020 Democratic presidential contest, several candidates floated the idea of “packing the court” — appointing more than nine justices — in order to counter the court’s rightward drift. But while the current Supreme Court often earns the ire of progressive lawmakers and activists, our guest Adam Cohen says it has actually been a force for injustice for the last 50 years, despite what Americans are taught about the court’s role in protecting the rights of marginalized people. “The Supreme Court — which is an institution that we think of as the bastion of fairness, the advocate for the underdog — has actually been a major driver of inequality,” says Cohen. His new book is “Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.”


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman. In Alabama, Nathaniel Woods offered no final words Thursday night as prison officials strapped him to a gurney and injected a lethal cocktail of drugs into his body. Woods was declared dead at 9 p.m. local time. He was put to death just hours after the U.S. Supreme Court stayed the execution briefly Thursday evening, only to lift it without comment. He was executed despite never pulling a trigger in the crime he was convicted for, the 2004 murder of three Birmingham police officers. In fact, despite being portrayed by prosecutors as the mastermind behind the crime, Woods went to the death chamber professing his innocence. His claims were backed by Kerry Spencer, a death row prisoner convicted for being the gunman in the killings, who says Woods was in the wrong place at the wrong time and had nothing to do with the crime.

Martin Luther King III responded to the execution on Twitter, writing, quote, “In the case of Nathaniel Woods, the actions of the U.S. Supreme Court and the Governor of the State of Alabama are reprehensible, and have potentially contributed to an irreversible injustice. It makes a mockery of justice and constitutional guarantees to a fair trial,” Martin Luther King III said.

This scrutiny of the Supreme Court’s role in Woods’ execution comes just after a rare public spat between Chief Justice John Roberts and Senate Minority Leader Chuck Schumer. On Wednesday, Chief Justice Roberts issued a rebuke of Schumer, saying he made “inappropriate” and “dangerous” remarks when he said Trump appointees Neil Gorsuch and Brett Kavanaugh will, quote, “pay the price” if they cut back abortion rights. Schumer has since said he regretted his choice of language but was not making a threat. And many have called out Roberts for selective outrage. Schumer spokesperson [Justin] Goodman said, quote, “For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Senator Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsburg last week, shows Justice Roberts does not just call balls and strikes.” He was referring to chief justice’s past comments that his role in the court should be that of an umpire.

This all comes as a new book has come out arguing that over the last half-century the Supreme Court has made America more unjust. The book is called Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. We are joined now by its author, Adam Cohen, a lawyer, a journalist, former member of The New York Times editorial board.

Welcome back to Democracy Now!, Adam. It’s great to have you with us.

ADAM COHEN: Great to be with you, Amy.

AMY GOODMAN: Can you first comment on just what happened last night, the execution of Nathaniel Woods?

ADAM COHEN: Yes. It’s not a shock that this Supreme Court did not stop it, but it’s very disheartening, and for two reasons. One is, this was a case where there was a very strong claim of actual innocence, that it would have been good to investigate more. We hate to see someone be executed who a lot of people think really was not guilty. Second part of it that’s very disheartening is that Mr. Woods was represented, as is not uncommon, by a lawyer who had no experience with capital cases, who did not do the sort of appropriate investigation that needed to be done. So he did not get the adequate representation at the trial level that would have reassured us that the verdict was appropriate. So, a very disturbing turn of events.

AMY GOODMAN: And you have worked in Alabama. You worked at the Southern Poverty Law Center.

ADAM COHEN: Yes. And I saw that it’s very, very common for capital cases there to be handled by lawyers who, A, don’t know what they’re doing, and, B, are not very interested in doing the job well.

AMY GOODMAN: So, this Supreme Court action follows what just happened in the days before, Chief Justice Roberts going after Senator Chuck Schumer on the issue of abortion rights.

ADAM COHEN: Yes. And “selective outrage” is exactly the right term. It’s the case that Chief Justice Roberts did not criticize Trump for his attacks on Sotomayor and Ginsburg. But he also didn’t criticize Trump when he attacked Judge Curiel a few years ago for his Mexican-American heritage and said that he would not be an unbiased judge. And Chief Justice Roberts has, on other occasions, let Trump — you know, for example, the Roger Stone trial. It’s incredible the amount of interference the president has done, attacking not only the judge, but the jury forewoman. We didn’t hear from the chief justice there. So, to only step up when a Democrat is making these statements is disturbing.

AMY GOODMAN: So let’s go to the thesis of your book, that the Supreme Court has made America unjust in the last 50 years. Talk about what you call “supreme inequality.”

ADAM COHEN: Sure. I think we all know that our society is becoming more and more unequal. The gap between rich and poor has been growing and growing to near-record levels. The question is: Why? The explanations we generally get are large forces like globalization and automation, or people look to the policies of the president and Congress. The point I make in this book is that the Supreme Court, which is an institution that we think of as the bastion of fairness, the advocate for the underdog, has actually been a major driver of inequality.

And there are two reasons to think that, two important reasons. The World Inequality Report 2018, which is an important report done by leading economists around the world, including Thomas Piketty, they looked at American inequality, economic inequality, and looked out what the drivers were. They found that there were two main drivers: educational inequality and our lack of a progressive tax system. As I explain in the book, both of these forces are directly attributable to decisions of the Supreme Court.

AMY GOODMAN: Adam, let’s start with the story of what happened under — in the Nixon era. Let’s go back 50 years and talk about who was on the Supreme Court and who got forced out.

ADAM COHEN: Sure. Fifty years ago, we had a very rare thing: We had a very liberal Supreme Court, the Warren Court. The Warren Court is known for Brown v. Board of Education in 1954, but also a series of progressive rulings, things like the Miranda case, where they said that you need to be told that you have the right to remain silent if you’re going to be questioned by police, cases like Gideon v. Wainwright, where the court held that any indigent person accused of a major crime is entitled to a lawyer. And the Warren Court was also standing up for poor people, welfare beneficiaries in particular. So, that was the court that was in place when Nixon is elected in 1968.

Nixon runs on a promise that he’s going to change the court and end the liberal Warren Court and replace it with something conservative. And he gets an amazing opportunity to do that, because Earl Warren has already said he’s stepping down. President Johnson bungled the replacement. He had an opportunity to replace Warren with another liberal, but he appointed or nominated Abe Fortas, who was already on the court, was an old buddy of his. It was a poor choice.

AMY GOODMAN: To be chief justice.

ADAM COHEN: To be chief justice, correctly, and to lead the court. It was poor choice politically, because although Johnson is known as the “master of the Senate” — he was supposed to be very good at counting votes in the Senate — he called this one wrong. There was a lot of opposition to Fortas for many reasons, ranging from Southern Democrats who didn’t like Fortas’s views on civil rights to some who opposed him because he would have been the first Jewish chief justice. But in any case, Fortas gets voted down. Nixon comes into office in 1969, gets to fill that critical position of chief justice with a conservative, Warren Burger. And then, in three years, he gets to appoint four justices and completely changed the direction of the court.

AMY GOODMAN: So, talk about what you think are the key areas where America has fundamentally changed. And, of course, this goes to parallels that we’re seeing right now with Trump’s Supreme Court.

ADAM COHEN: Sure. You know, my book begins with a couple of chapters on the poor, because it really is amazing to think of all the things that the Warren Court was doing for the poor. And, you know, they were advocating for and ruling for welfare recipients in major ways. There was a case called Goldberg v. Kelly. Unbelievable to think of it now, but the court ruled any time any government takes welfare benefits away from a family, they are entitled to a hearing to make sure that they are not entitled to welfare. That was a major, major constitutional right given to the poor.

This changes under the new Burger Court that Nixon created, and suddenly we get rulings against the poor. And one of the big rulings is a case called Dandridge v. Williams, where the court upheld Maryland’s cap on welfare for large families. So, Maryland basically said, if you have more kids after a certain point, you don’t get more welfare. There was a very strong claim that that was an equal protection violation, that the Equal Protection Clause of the Constitution, which says the government has to treat everyone equally, is violated when you don’t give welfare to the last children in a larger family. The court not only rejects that claim, but they basically say, “We’re washing our hands of all welfare cases. You know, poor people, you’re on your own.”

And we’ve now seen, over the decades, that the court continually rules against the poor. And I can point to one recent example, which is the Affordable Care Act case of a few years ago, where the court was lauded for upholding Obamacare. Much less attention was given to the fact that at the same time, the court struck down Medicaid expansion on very dubious constitutional grounds and basically took Medicaid away from millions of poor people, who had gotten it given to them by Congress.

AMY GOODMAN: You talk about a particular person started out here, Ed Sparer, and the importance of the movement. And this goes to the issue of movements versus the power of the Supreme Court.

ADAM COHEN: Yes. There was in the '60s a very strong poor people's movement led by Ed Sparer, by George Wiley and other people, who were marching and demanding that welfare recipients be given more benefits, be treated differently. Ed Sparer was using the courts in very creative ways. And it really is sort of the end of the Ed Sparer dream. After that Dandridge case that I mentioned, Ed Sparer was quoted saying how sad it was, because it could have been a different America, he said, if the court had ruled for the welfare family in Dandridge. But in the end, the whole poverty law movement was stopped.

AMY GOODMAN: And this whole poverty law movement, talk about its connections to mass incarceration.

ADAM COHEN: Yes. So, one of the main things that they understood is that incarceration is not just a criminal issue, but an economic issue. And putting an adult in jail devastates not only their economic future, but that of their family. And there were very creative approaches being taken and arguments being made that the kind of intense punishment that the system metes out is not constitutional. The court rejected that.

And that was — a while later, there was a very important case out of California challenging their “Three Strikes and You’re Out” law, the Andrade case. And in Andrade, there was a — the defendant was a man who was 37 years old, father of three, military veteran. He had shoplifted about $150 of children’s videos. Under California’s “Three Strikes and You’re Out” law, he was sentenced to 50 years to life. That means for taking nine children’s videos, he was going to spend until the age of 87 behind bars. His lawyers made a very strong claim that’s a violation of the Eighth Amendment, which bars cruel and usual punishment, you know, to put someone away that long for such a minor crime. And the court rejected that 5 to 4. If they had come out differently on that, the Eighth Amendment could have become a tool for policing excessive punishments, and it could have been a major way in which we clamp down on mass incarceration. The Supreme Court didn’t allow it, though.

AMY GOODMAN: Compare it to the Allstate case.

ADAM COHEN: Yeah. So, what’s shocking is, within a month of that decision, the court had a different case. There was a corporation, Allstate Insurance, that had done something very terrible to one of their policy owners, involving fraud and mistreatment. The jury was so outraged, that it awarded $150 million in punitive damages. Sounds like a lot, but to a company the size of Allstate, which has like $50 billion in revenue a year, it barely would get their attention. Nevertheless, they went to the Supreme Court and said, “This $150 million punitive damage award against us is unconstitutional.” Guess what. The same court that was OK with the 50 years to life for an actual human being said $150 million against this corporation violates due process. And they ordered that be lowered to about $9 million. So that’s a major difference there.

AMY GOODMAN: So, corporations as people. We’re going to break and then come back to this discussion and talk about progressive taxation and also talk about education, what the Supreme Court has done to the educational system of this country. Adam Cohen is with us. He is the author of a new book called Supreme Inequality. Stay with us.

[break]

AMY GOODMAN: “Ain’t No Love in the Heart of the City” by Bobby “Blue” Bland. This is Democracy Now!, democracynow.org, The War and Peace Report. We’re spending the rest of the hour with Adam Cohen, author of a new book. It’s called Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. So, we were talking about welfare rights. We were talking about poverty. Let’s talk now about progressive taxation and what the Supreme Court did. I mean, again, most people think of presidents as the movers, Congress as the movers, movements as the movers. You’re really centering a lot of what you’re saying happened in America in the Supreme Court.

ADAM COHEN: That’s correct. And on the lack of progressive taxation, why don’t we have higher taxes on the wealthy? Well, every time they take a poll, voters overwhelmingly want higher taxes on the rich. And that’s, you know, across the ideological spectrum. But the people that don’t want it are large campaign contributors. And that is something that has undue influence on Congress because of the Supreme Court.

So, why is that? Because in 1976 there was a critical case called Buckley v. Valeo, long before Citizens United. For the first time, the Supreme Court said money is a speech. It didn’t have to say that. And, in fact, the lower federal court that heard the same case — and the case was a challenge to a very strong campaign finance law that Congress had passed in reaction to the Watergate scandal — the lower court said, “This is fine. It’s perfectly constitutional to limit contributions to candidates and expenditures.” The Supreme Court overturns that decision and says, “No, expenditure limits violate the First Amendment because money equals speech.” That equation of money and speech, first of all, I don’t believe and it makes no sense, but also that opened the floodgates to everything we’ve seen with Citizens United and other cases, allowing huge special interest money and corporate money to really control our politics.

AMY GOODMAN: Talk about Lindsey Graham.

ADAM COHEN: Yeah. So, the influence of money on tax policy was made very clear at the end of 2017, when the Trump tax law was about to be voted on. There were some of those polls that I mentioned showing the voters did not like the idea of lowering taxes on the rich. But at the same time, we heard large campaign contributors be more outspoken than ever, talking to the press and saying, “Unless we get our taxes lowered, we’re going to stop contributing money to Republicans.” Lindsey Graham actually made a statement to his colleagues and said, “Our contributions will dry up, and a lot of our Republican incumbents will not win reelection, unless we lower taxes on the rich.” And again, that’s the Supreme Court talking.

AMY GOODMAN: I want to turn to President Barack Obama responding to the Citizens United, that controversial 2010 Supreme Court ruling that opened the floodgates for unlimited corporate spending on election campaigns.

PRESIDENT BARACK OBAMA: The United States Supreme Court handed a huge victory to the special interests and their lobbyists, in a powerful blow to our efforts to rein in corporate influence. This ruling strikes at our democracy itself. By a 5-4 vote, the court overturned more than a century of law.

AMY GOODMAN: Adam Cohen, your response?

ADAM COHEN: Well, he’s exactly right. It was a radical move and really the step between saying money is speech for individuals and saying it’s true for corporations. The idea that corporations have a right to participate in our elections is a radical one, and it’s definitely changing our politics.

AMY GOODMAN: I don’t want to end this without talking about education in America, the role of the Supreme Court in unequal education.

ADAM COHEN: Yes. It’s one of the most tragic parts of the story. In the late ’60s and early ’70s, there was a very strong movement to try to create more equal public schools around the country. One important part of that was the campaign finance movement. And the idea was that all schools in rich and poor districts in a state should be funded equally. And law professors and courts were beginning to say the Equal Protection Clause, which requires government to treat all of its citizens, everyone equally, means that they have to fund rich and poor school districts equally. There were a lot of rulings that were beginning to say that.

In Texas, a group of parents and children in San Antonio, who the children attended one of the poorest, heavily Mexican-American school districts, they saw how bad their schools were compared to the largely white schools down the road. Students actually walked out in protest. The parents filed this lawsuit saying that the poor level of funding of their school violates equal protection. They win in the federal court in Texas. Goes up to the Supreme Court, and it’s reversed 5 to 4. The court says, “No, giving more money to rich districts than to poor districts is perfectly constitutional.”

And then, a year later, another very tragic case, where in Detroit the NAACP was representing black schoolchildren in the city who wanted an integrated education. The judge in Detroit rightly found there was no way to integrate the schools if you just included Detroit. There weren’t enough white students. He ordered a metropolitan-area remedy, which meant that you would bus people across district lines, urban and suburban, to make sure that everyone attended an integrated school. He came up with a great plan. All the schools in the Detroit area would have been 70% white, 30% black, reflecting the racial mix of the metropolitan area. And the Supreme Court reversed that, too. If those two decisions had not been reversed by the Supreme Court, we would have very different public schools for the last 50 years, and, I think, a very different country.

AMY GOODMAN: So, as we move forward now, what do you see happening to the Supreme Court? And are you looking particularly at any cases? I mean, the most recent case is the Supreme Court considering this Louisiana abortion case, which could lead to, I mean, perhaps one clinic in all of Louisiana, if Louisiana is lucky.

ADAM COHEN: Yeah. We’re at a turning point for a lot of things. For abortion rights, Justice Kennedy, who left the court, replaced by Kavanaugh, was one of the moderating forces on abortion. We don’t know what five justices, the majority of the Supreme Court, will do now on abortion. We don’t know what they’ll do on affirmative action. Chief Justice Roberts has been very outspoken about opposing all racial remedies. The Supreme Court could actually strike down affirmative action broadly.

And as bad as things are on the current court, it President Trump gets a second term, is able to replace one more liberal justice — perhaps Justice Ginsburg — there’s no telling how far they could go. There is a right-wing movement that says that, basically, all of the large social programs that were created during the New Deal, the social safety net, is unconstitutional, that it exceeds the power of Congress. We could see a radical conservative Supreme Court in a few years actually striking down things like the federal minimum wage.

AMY GOODMAN: We’re going to leave it there. I want to thank you so much, Adam. Adam Cohen is author of Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.

Read part two of this interview: Justice Denied: 50 Years of Supreme Court Rulings That Gutted Civil Rights, Voting Rights & Expanded Inequality

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Adam Seth Cohen is an American journalist, author, lawyer, and former assistant editorial page editor of The New York Times. He also works in the administration of New York City Mayor Bill de Blasio. He received his law degree in 1987 from Harvard Law School where he was the president of the Harvard Law Review. Cohen clerked for Judge Abner Mikva on the federal D.C. Circuit Court of Appeals and then served as a lawyer for the Southern Poverty Law Center in Montgomery, Alabama. Cohen subsequently worked as a staff attorney for the American Civil Liberties Union (ACLU) in New York City. After leaving the ACLU, Cohen spent seven years as a senior writer for TIME magazine, until he left to become a member of The New York Times editorial board. After leaving The New York Times, he became a lecturer in law at Yale Law School and a fellow at the Yale Information Society Project, teaching courses in media and internet law.

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