Strict Scrutiny - BONUS: Supreme Inequality with Adam Cohen

Episode Date: April 13, 2020

Back in February, when crowds were still a thing, Melissa interviewed Adam Cohen about his new book, Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America.Adam examines the conservative tilt of the Supreme Court since the Nixon administration and forward through the last 50 years. The Supreme Court after Justice Earl Warren no longer protected the rights of the poor, the disadvantaged, equally and instead moved forward to deprioritize such issues as school desegregation, voting rights and the protection of workers and instead, prioritize decisions that favored wealthy and corporate interests.Thanks to the Brennan Center for Justice at NYU School of Law for letting us share this riveting conversation with Strict Scrutiny listeners. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hi, this is Melissa Murray, and this is a very special episode of Strict Scrutiny. In this episode, I have a conversation with journalist Adam Cohen about his new book, Supreme Inequality, the Supreme Court's 50-year battle for a more unjust America,

which was just published on February 25th of this year. On February 27th of this year, Adam and I met here at NYU School of Law for a conversation about the book that was sponsored by the Brennan Center for Justice. We are really grateful to our friends at the Brennan Center for making the audio available so that we could produce this bonus episode for our strict scrutiny fans. And we encourage you to follow the work of the Brennan Center at their website, www.brennancenter.org, as well as on Twitter and Facebook. And of course, Adam's new book, Supreme Inequality, is available on all major book selling platforms. Thanks so much for listening.

Thank you so much, Professor Murray. It's really a thrill to be here with you in particular. Yes, I'm going to try to do just a very quick slideshow to give you an idea about the book. And then we'll have, I think, more fun. Professor Murray and I will have a conversation, and then most fun when we throw it up to questions from you all.

So I don't know if you saw this, but this is a little clip from CBS Morning News. It went viral on Twitter a few weeks ago. And what they did is they went to a shopping mall and they just asked random people in the shopping mall, they put out these plates, five plates that represented five different segments of the American population, the top 20% by wealth, the second 20%, the third, the fourth, and then the poorest 20% by wealth. And they asked people in the mall how many pieces of pie they should put on each plate

in order to accurately convey the wealth distribution in the country. They had 10 pieces of pie. And of course, people were wildly off. They were sort of embarrassed to say, well, I think maybe you should put maybe four pieces of pie on the first plate. And then the reporter would say to them, no, actually nine of the 10 belong on the first plate. The 10th piece of pie, you need to split between the next two plates.

80% of it for the second plate, 20% for the third. The fourth plate, which is the fourth 20% of the population, gets zero slices of pie. And then the bottom 20% of the American population by wealth gets a bill because they actually have no wealth at all. So what was really interesting about that was two things. One is we saw just how extreme inequality is in the United States. But the other thing that was really illuminating was that people didn't know how bad it was, right? I mean, people had no idea that nine of the 10 slices belonged on that first plate. So that, I think, is part of our problem, is not that we're just an increasingly unequal society, but people don't realize how bad it is. So why economic inequality? We hear a lot

of talk about it. We read in the press, you know, people talk about, well, globalization is making us more unequal, automation, policies from Congress and the president. In the book, I say, you know, one thing that we're not talking about enough is the extreme role that the Supreme Court has played in this inequality. It just doesn't come up in the conversation, but I think it's a major driver. And when we talk about the Supreme Court being a driver of inequality, we need to go back to 1969. And that's why the book is the last 50 years of the Supreme Court. Something very dramatic happened then. There was a liberal court, the Warren Court, when Nixon was elected. And Nixon ran on a campaign promise to change the court, and he was unbelievably effective in doing that.

Part of the reason was that he was able to replace Warren himself, who was about to retire, with a conservative chief justice, Warren Burger. And then the second critical part of this, and Professor Murray and I will talk about this more, was that there was one justice, Abe Fortas, who Johnson had tried to elevate to chief justice to take Warren's place, and the Senate did not confirm him, who Nixon succeeds in driving off the court through really a lot of false accusations, exaggeration of a small ethical lapse, threatening to put Fortas and his wife in jail. Fortas, who was then the most liberal member of the court, gives up his seat, and Nixon's able to replace him. And that allows him ultimately four justices in three years, and we end up with a totally different court. Now, that is the same conservative court we have today, essentially. A conservative chief justice, which there's been for the last 50 years, a conservative majority. Different justices have come and gone, but that conservative court

is still with us today. So why do I say that that conservative court is a major reason for the inequality in our country today? Well, the World Inequality Report of 2018, which is a report put out by leading economists, including Thomas Piketty, they go through inequality around the world. And in their discussion of why inequality has been rising in the United States, they say there have been two main drivers, educational inequality and unprogressive taxation. Well, each of those two main drivers is absolutely attributable to the court of the last 50 years. How is that? Well, so this is just one little snapshot of the inequality that we have in just one state. The Washington Post did this story a few years ago about funding inequality in Pennsylvania.

And the highest spending district in Pennsylvania spends more than three times as much as the lowest spending district, which is in coal country. Why does this happen? And not just in Pennsylvania, but in states around the country. Well, because of two important rulings from this Nixon court that was created in 1969 and 70. Rodriguez v. San Antonio Independent School Board. The court had an opportunity to say that the Equal Protection Clause required equal funding across school districts. And they came within one vote, five to four, of doing it. And the thing about this case is there was actually a lot of momentum behind the idea of equalizing funding. Lower courts were ruling that way, state and federal. Supreme Court steps in and

stops that momentum. And, you know, the math is very clear. If Abe Fortas had remained on the court, it would have been five to four the other way, and we would have equalized school funding. And then the second case, Milliken v. Bradley, said that you don't need to integrate schools across urban-suburban lines. So Detroit, which had a heavily minority population, the NAACP sued to try to get the kids there an integrated education. And the court came within one vote of saying, yes, you could have busing across urban-suburban lines to integrate. You have to have it because it's the only way to integrate places like Detroit. But again, because Fortas was not on the court, the conservatives had one more vote than the liberals, and that also was rejected. So those two cases are the reason, a main reason, we have such educational inequality.

Now, the taxes part of the inequality from the global inequality report. You know, you see in many charts like this, the tax rate on the rich is going down, right? It's been going down sharply. Why is that? Well, it's not because the American public doesn't want to tax the rich more. In fact, the American public voters very much do want to raise taxes on the rich. Polls show that all the time. The problem is that big contributors do not. And you may remember when the Trump tax bill was pending at the end of 2017, there were a number of stories like this one where big campaign contributors were just flat out saying, unless you lower my taxes, I'm going to

stop contributing. And here's Lindsey Graham saying, we better lower my taxes, I'm going to stop contributing. And here's Lindsey Graham saying, we better lower the taxes on the rich because otherwise we're going to lose these contributions. And Graham said, we're going to lose Republican control of Congress. So big contributors drove this policy. Now, why is that the Supreme Court? Of course, because of the Supreme Court's campaign finance decisions, right? There was a time when we thought possibly we could have real campaign finance laws. And after the Watergate scandal, Congress passed a very good law. The Supreme Court struck it down in 1976 or struck down an important part of it and came up with that, you know, that incredible formulation that money equals speech, which

some people say is the original sin in constitutional law today. So because of that, and as we know, there have been case after case where they've opened the floodgates further, leading eventually to Citizens United and corporations can spend. Because of that, the wealthy have more control than ever before over our politics. And one of the things they wanted was to not have progressive taxation. So there are many other areas where the court has also promoted inequality. I have a lot of them in my book. But the way they've ruled about unions and employment discrimination, corporate law, criminal law rulings have led to mass incarceration.

And just to end this, I would say that it's really important to remember this is what happened, but it isn't what had to happen, right? This was a politically constructed court established by Nixon. He was able to steal one seat, Fortas' seat, which was a while ago now, but we all remember more recently when the Republicans stole another seat, right? Merrick Garland's seat. So it was, they were bookends. One theft of a seat created the conservative court. Fifty years later, another theft of a seat from Merrick Garland maintained the conservative majority. So it could have all been very different. We might have had Rodriguez equalizing school funding.

We might have had Milliken actually creating integrated education. And in the book, I quote Ed Sparrow, who was now sadly not very well remembered professor and poverty lawyer, who said after one big, big defeat for the poverty law movement, probably the biggest, Andrew V. Williams, that it could have been a different America. And that's very much the point of my book, that if this had all been different, it could have been a different America. So that's a little intro to the book. But why don't we start talking? That was a great intro to the book. Very comprehensive. A plus. So this is where I start. You start with the Warren Court, and you take it as an article of faith that the Warren Court was a high watermark in the United States, and certainly in the legal culture of the United States,

a high watermark for progressivism. Have you perhaps overstated the case for the Warren court? You might say overstated. You might say that I graded on a very easy curve, right? So the thing is, as you mentioned, I just finished writing this book, Buck versus Bell, about this 1927 case where the Supreme Court not only allowed this poor young woman, Carrie Buck, to be sterilized, but really actively embraced the eugenics movement and said, we need to, you know, stop the tides of imbeciles from overwhelming our country. And when I was working on that book, I did go back, and it's amazing to see just how regularly the court was not only wrong, but horrible, right? I mean,

Dred Scott sues and they say, you know, you don't have a right to sue as a black man for your freedom. And then Plessy sues and they say, you don't have a right to sit in integrated railroad cars. And I had written, as you mentioned, a book about the New Deal and, you know, FDR comes into Washington and the country is near collapse, 25% unemployment, families just sitting on the streets surrounded by their furniture. They've been evicted. The country is in ruins. FDR comes up with a new deal program. The Supreme Court begins striking down the new deal. So I would say that after all of that, yes, the Warren Court didn't do some of the things we might have wanted, but it was such a breath of fresh air, and it did a lot of good. I'm going to push back on this. I think you were exactly right that

the court has always been pro-business. I mean, if you think about the Gilded Age Court, the trust-busting court, they were not interested in antitrust legislation. They were actually actively invalidating it. The Warren Court is kind of a dip, and what is framed on either side is a pro-business court. But I want to push back on the kind of hagiographic portrayal of the Warren Court as being perhaps more progressive than ever. So here are a couple of issues or cases decided by the Warren Court. So Hoyt v. Florida, 1961, which upheld a state law that allowed women to be exempt from jury service. And in upholding that law, the court allows for blue laws to be upheld, even though they have a disparate impact on individuals who observe a Saturday and Sunday

Sabbath. And then in Lassiter v. Northampton County, a 1959 case, it upholds the constitutionality of voter literacy test, and that's only repealed through the congressional action of the Voting Rights Act. So are we making too much of the Warren Court? They did lots of great things, but they don't actually spell out why Brown versus Board of Education is decided the way it does. It doesn't give us a very clear answer for why separate but equal is a problem. It does great things, but is it as progressive as we've given it credit for? Well, it's a great question. Part of my answer would be that for, you know, Warren court purists like me, there were really two Warren courts, right? There's a different Warren court in 1962, right? So Kennedy gets two appointments in 1962, one of them white,

who ends up being somewhat disappointing, but Goldberg does shift the court over, right? So there are people who say when you really want to talk about the essence of the Warren court, you really want to talk about post-62 cases. Right, so now we're changing the time frame. Well, I've always, I actually say in the book, I say in the book that people do say that it's that post-62 court that's more important. But no, you're right. And you could point to the Terry decision, right? I mean, and that's very much the late Warren court. They really uphold the idea of stop and frisk, right? So no, they're not ideal.

And also one thing I write about a lot is my frustration that in a lot of the cases, the first case I talk about in the book is King versus Smith, where the court strikes down the man in the house rule. And Mr. Garbus, who's been referred to here, won that case nine to man in the House rule. And Mr. Garbus, who's been referred to here, won that case nine to nothing before the Supreme Court. And it's amazing. And I cite his memoirs in the book. And that is an enormous victory. But you might say,

as a critic, it was a very narrow ruling, right? It's a statutory decision that could have been a constitutional decision. Absolutely. And a lot of their ruling is about the poor, which I'm very excited about, because as a former lawyer, when I was at the ACLU, we really weren't winning much of anything. So any victory is nice. But yes, I was waiting for them to declare the poor as a suspect class and to really get to work. I was also waiting for though, and actually I almost started the book with this. Frank Michaelman wrote a very famous introduction to the Harvard Law Review in 1969, where it's like so unfathomable now that this was part of the debate. But he argued in really a leading law journal in a very prominent introduction to the Supreme Court issue that there's a right to

subsistence under the Constitution, quite possibly, that there might be an obligation of the government under the Constitution to give you welfare. So there were all those things they could have done. So you're right. If I were a tougher grader, I would give them, yes, some kind of a B maybe. Yeah. But in the great scheme of things, a B is pretty good because the court's kind of been an F. Right. The court has been an F. But you're right. I like to think of them as an A only because as I look at everything else the court has done in its history, when you look at them striking down the man in the house rule, and even a case like Goldberg versus Kelly, just unfathomable now that the court said before any locality in the country is going to remove anyone from welfare, they have a right to a formal

hearing under the due process clause. I mean, people like us get very excited about that, right? That's a big, big deal. Yeah. So you're right. Goldberg versus Kelly is a high watermark. There are all of these other victories and they're elusive and ephemeral because they go away very quickly. And I just want to be clear. I really do love the book. I read the book a lot. Really enjoyed it. It's beautifully written. It's compulsively readable. It's super depressing, but that's cool. That's okay. But it's organized across a number of different substantive areas, as Adam explained, workers, democracy, criminal justice, education, corporations. And across all of those areas, you explain in incredible detail how the court over time has really shifted to the right and toward

a posture that is much more pro-business and less concerned with the rights and positions of individuals and especially the poor. And because you do such a great job of chronicling this shift across these areas, one of the places where I was sort of left wanting more is like, I couldn't understand, especially given your prior work, why isn't reproductive rights part of this story? Like, because that is an area where the court's rightward shift really has had a profound impact on the poor and poor women particularly. Right. And absolutely. And gender in general is not as much a part of it as it could be. I mean, I do mention one really ironic thing is that it really

was the Burger Court, which did so many terrible things that really came to the rescue of women. That's right. Some of this, though, was just a matter of trying to constrain the subject. And it's such an enormous subject, 50 years in the court. And I was trying to hew very closely to economics. But you're right. That matters a lot. Also, the gay rights decisions are also very important.

I mean, all of these decisions that liberate people, liberate them economically as well. Well, so to the gay rights point, you are very down on the Roberts Court, as well you might be. But one high point for the Roberts Court certainly should be 2015's Obergefell versus Hodges, which, as you know, legalizes same-sex marriage across the country. But you might argue that the veneration of marriage at a time when marriage rates are declining among most groups except the upper classes is actually a decision that gives rise to even more income inequality. So again, not just the omission of reproductive rights, but how marriage is such a big part of the court's jurisprudence and especially seen as a high point in the Roberts court's jurisprudence, but it might actually feed your story.

You're absolutely right. And there are so many other roads I could have gone down. That's absolutely one I should have. But I was much more, I'd say, bread and butter about when in the employment context, I talked about the first three cases in the introduction, may it advance. And, uh, you know, Lily Ledbetter and Jack Rose, these stories are so horrible, right? That the court five to four rejects people who have been horribly discriminated against in the most callous way and also make up the law as they do it. So I guess I wasn't really looking for things to give them credit for. And I also wasn't looking to expand the brief as much as I could have, because I just looked at things like

those rulings and I thought, it's just a crime that people don't know about Mayette Evans. And for those of you who don't know, I mean, it's just this horrible case where she was the only African-American woman in the catering department at Ball State University. The things they did to her, the woman who supervised her every day, you know, used words like Sambo and slapped her in the face. And another white woman boasted about her family in the Ku Klux Klan. And they just, they were just horrible to her. And she sues Ball State and it gets up to the Supreme Court. And they say, you know, that woman, the woman who slapped you and Sambo and all that, she's not really your supervisor because although she supervises you on a day-to-day

basis and tells you what you have to do because she can't hire and fire, she's not a supervisor. And when you read that, you're just like, this is so horrific and that people don't know about it, you know, and poor Jack Gross also, who, you know, was absolutely a victim of age discrimination. He got a jury award. It was, there was no question about any of it. And they just come along and they say, you know, you know, the standard we use in every, all those other forms of discrimination, like when you sue for, for sex discrimination or race discrimination, we're just going to raise the standard for age discrimination, even though the language is exactly the same. So, I mean, I did focus on some of the appalling things.

I just feel like I wanted to ring a bell and tell people, do you realize what your court is doing? And no one's, you know, in the streets protesting. What they're doing right now. I mean, there are two cases before the court right now. One involving a civil rights statute. This is the Byron Allen case, Comcast versus National Association of African American Owned Media. And then another case, Wilkie, which involves the Age Discrimination and Employment Act. And in both cases,

the corporate interest is trying to have the standard for presenting a claim actually raised. So we're seeing this right now before the court, and no one is talking about either of these cases, like sort of ratcheting up of what civil rights claimants have to prove. Totally. And I think we know when we read, you know, the section of the newspaper about the Supreme Court, it's like reading the obituaries, right? You have to prepare yourself for what's today's horror. And, you know, yesterday's horror, as you know, was that the poor parents in Mexico, right? Who like, yeah, I mean, you know, the border patrol shoots their poor kid to death for no reason, and the court finds a way that they don't even get to sue over it, you know, five to four, you know. So, I mean, what do we do about

this parade of horribles? Well, that does seem to be one of the themes, right? It's not necessarily even substantive decisions that are problematic, but decisions that actually limit access to the court. So MESA is clearly a decision where access to the court system is limited. But you talk about the rise of this pro-arbitration movement, which actually starts out as being a pro-worker movement, but then gets co-opted and manipulated into something that is really pro-business and pro-corporate interest. And the court embraces it wholeheartedly in that form. Totally. And when I was in law school, there was this very nice professor, older professor Frank Sander, and everyone loved him. And he was like, Mr. Arbitration. And people thought, oh, arbitration, that sounds great. It'll like cut down on the

cost. And yes, as you describe, arbitration, which started out as this idealistic pro-consumer movement, ends up being taken over by corporations and being used in ways that it's just shocking. Like right now, they are writing mandatory arbitration clauses into almost everything to the point that pretty soon, probably no one will be able to sue their employer ever, no matter what they do to them, because they'll be forced into arbitration. No one will ever be able to sue their bank,

the store that they buy things from. While I was writing the mandatory arbitration section of the book, I got an announcement from Chase saying that I was going to, that now all of my banking relationships with them were being put in mandatory arbitration. And I wanted to check to make sure they did the second horrible thing, which is to say, and also you can't have a class when you go into arbitration. And they did do that as well. So, I mean, it was literally, it was happening quicker than I could write it in the book,

these horrible things. Well, so the part in the book where they talk about arbitration and the rise of arbitration and the elimination of class action, I mean, because it all works together. So limiting the option for aggregate litigation, forcing people into arbitration as opposed to actual adjudication. You mentioned Italian Colors, which is a court case. I think it's from 2014. Is that right? Sounds right. Sounds about right. So Italian Colors is a restaurant in court case. I think it's from 2014. Is that right? Sounds about right. So Italian Colors is a restaurant in Oakland that I used to frequent when I lived in Berkeley.

And what was sort of interesting about it is the conservative legal movement is always talking about individual liberty. Interestingly, five members of the court are identified as members of the Federalist Society, which if you don't know, is a debating society for conservatives and libertarians. And one of their professed credos is this commitment to individual liberty. What could be more in keeping with the idea of individual liberty than this mom and pop Italian restaurant in North Oakland that the court completely shuts out in favor of American Express. Right. Which is, but it's a great point. It's a fascinating case. And it's why I really ultimately feel a lot of what the court is really about is just siding with the powerful against the weak. And that was what they did with Carrie Buck when

they allowed her to be sterilized. That's what they did in a lot of civil rights cases, but it's what they did in Italian colors, right? Because the American Express is a bigger corporation than the little restaurant and they like the big corporation. They seem to always like the big and powerful. So let's talk about the inflection points in the book. So the book identifies a couple of real game changer moments for the court where the court could go either way and they invariably pick the terrible way. Right. So one such moment is the moment where Earl Warren recognizes he's going to leave the court and he goes to Johnson. Johnson tries to have Abe Fortas elevated to chief justice. Abe Fortas runs into an ethics, well, it's actually more of a tempest in a teapot than anything else. It's a minor ethics infraction that's easily corrected.

And honestly, today would be of no moment, I think. But he is shot down at the Senate. And not only is he shot down at the Senate, it dogs the rest of his career as an associate justice. And Nixon basically puts all of the administration on the case of drumming Fortas out of the court, which they do successfully. Fortas is then replaced, or Warren is replaced with Warren Burger. So that's one set of inflection points. Another inflection point that you mentioned is Bush v. Gore, the 2000 election case, which gives the presidency to George W. Bush. And in doing so, also hands George W. Bush two opportunities to shape the court, one of which occurs in 2005 when Chief Justice Rehnquist dies and he is replaced by Chief Justice Roberts. And then when O'Connor retires from the court and she is replaced by Alito,

Rehnquist for Roberts is maybe an exact match. O'Connor for Alito really drives the court to the right. And then you frame the Nixon-Fortis debacle with the question of Merrick Garland and that stalled nomination. What other inflection points do you see in our current moment? Is Brett Kavanaugh an inflection point where we had an opportunity to shift the court? Might we understand Ruth Bader Ginsburg's failure to step down during Obama's second term as an inflection point that we will be regretting going forward? What do we make of some of these things that are happening now that really the repercussions are going to be more predictive than seen right now? Yeah, no, these are all great points. And what what part of what I think you're you're getting at is just that the Republicans have always gamed the Supreme Court a lot better than the Democrats have.

Right. At every juncture and even in extreme ways, like for like like the Fortas case where Nixon engaged in dirty tricks. But just always, they're more disciplined, right? I mean, Mark Twain famously said, I'm not a member of an organized political party. I'm a Democrat, right? And that applies very much to the Supreme Court. So look at Anthony Kennedy's decision to step down. He stepped down at the absolute last moment when he could be assured that a Republican president would have a Republican Senate who would confirm a successor. He does not appear to be in bad health.

So that was a very conscious passing of the baton. And if you look at the numbers, I quote a study in the book, almost all the conservative justices managed to hand their seats off in the last 50 years to other conservatives. The liberals never do it, right? Marshall is a great example. If Marshall had stepped down, if Marshall had remained on the court, he actually, you know, he lived through the beginning of the Clinton administration, right? If he had stayed on the court, we could have had a Clinton replacement instead of Clarence Thomas. Yeah, that's been a pattern. And yes, Ruth Bader Ginsburg, but also Steve Breyer, they could have stepped down at the end of the Obama administration and been replaced. So, you know, these things add up. And these are reasons why that 5-4 majority has

stayed in place. And you mentioned Bush versus Gore. And, you know, people look at that case and they say, boy, the conservatives all voted for the person they wanted to be president. They wanted Bush because they're Republicans themselves. That's true. Or they wanted to be president. They wanted Bush because they're Republicans themselves. That's true. Or they wanted to have a beer with him. Or they wanted to have a beer with him. That's quite possible. But the other thing they were voting for is

they saved the conservative court, right? If Gore had been elected in 2000, he would have immediately started appointing liberal justices. That conservative court would be over. So for people like O'Connor and Rehnquist, they loved the conservative court. That was their life, and they were voting to keep it by putting Bush in office.

Do you think they had an idea, O'Connor especially, do you think O'Connor had an idea of the court going so far to the right when it did? I mean, there are some suggestions that she was shocked, dismayed, that someone like Alito took her seat as opposed to a woman who would be conservative, but maybe more of a moderate. I think that's right. And I think she probably

wanted the court to remain the way it was when she was in the center. And it did when Alito replaced her, became more conservative. But, you know, she's also not a liberal. And I think she would be more concerned if the court had become a liberal. And, you know, there is this sort of a bit of a mythology about Justice O'Connor. And, you know, I mentioned to you, I'm going to be on a panel in a couple of weeks with Evan Thomas, who wrote a wonderful biography of her. When she was first appointed to the court, some feminist scholars wrote these law review articles about how it's great that the first woman's on the court because, you know, you can already see in her jurisprudence, you know,

concern about children and outsiders and all that. And, you know, it's just not true. And one of the cases I, you know, I talk about in the book, the Kedermans case, right, where there's this, this rural North Dakota family, their, their nine-year-old daughter goes to school 16 miles away and the school system starts charging for the bus. They live below the poverty line. The father works part-time in the oil industry. They can't afford the bus fee. So they challenge it. They say there should be a waiver for poor families like themselves. The way in which O'Connor, who writes the majority opinion five to four, dismisses the idea that little Sarita, nine year old Sarita, should have any right to get to school, public

school for free. You know, that's part of who she is, too. Right. I mean, she's not she's not so warm and fuzzy. She's more liberal than Alito. She probably didn't want him to be her replacement. But, you know, she didn't want, she's not so warm and fuzzy. She's more liberal than Alito. She probably didn't want him to be her replacement, but she didn't want Ginsburg to replace her either. Yeah. So with that in mind, the Republicans have really played a long game in terms of the court.

The Democrats have not been super organized on the court, and this election cycle shows no sign of improvement. What do you make of some of these proposals, which honestly have been tagged as really far left about changing the composition of the court, adding additional justices, imposing term limits, even changing the composition of the Senate to allow for D.C. to have two senators, Puerto Rico to have two senators, so that you might be able to change the nature of judicial appointments. So lots of different ways to sort able to change the nature of judicial appointments. So lots of different ways to sort of deal with the question of the court. What do you think of them and what do you think of them being tagged as really leftist or far left? Yeah, I mean,

there are a lot of them. You know, my general reaction is that I'm not so interested in them in large part because I don't think they're going to happen. You know, a lot of them require a constitutional amendment. Some of them don't. We could expand the size of the court by legislation, but it's just not going to happen, right? It happened in the 1930s. This is how Franklin Roosevelt got the New Deal. Well, he threatened, right, he threatened to pack the court, but it was very controversial and people hated him for doing it. Yes. And now they love him. They do. They do. It can occasionally work, but I guess where I was going to with this is if we had an FDR in office right now, maybe he could do that kind of thing. We don't have a president in office.

I'm just going to let that go. Yeah, we're going to let that go. But I guess what I'm saying is I think it's a distraction. I think the main thing is the Democrats need to win the White House. That is how the court will change. I don't think we're going to get these deus ex machina, some amazing new way we're going to organize the court. You know, think tanks are working on these proposals. Is it more important to win the presidency than it is to win the Senate if you care about the court? Well, you need to win both, right? But

that's why, I mean, as you mentioned. These are the Democrats. So if you had to pick one, what would you pick? Which is more important, if you care about the court, winning the presidency or winning back the Senate? Well, I mean, they're both very important. You know, I mean, I like having a president. Really? Yeah, I do. So I thought you would have said, given the concern about the court, that the Senate would be more important, because if you could win back the Senate, you could force the president to put up more moderate nominees for all of the federal court positions, not just the Supreme Court. Until Joe Manchin tells you how hard it is to get elected in West Virginia as a Democrat, and he votes with Mitch McConnell. You know, I just, I guess I don't believe the Democrats in the Senate would be that disciplined.

I think having the power of appointment is really, really important. But they're obviously both important. But what the Democrats should be doing now is talk about all this stuff. As you say, it doesn't come up in the debates, which is bad, but they can raise it on their own. And it should be part of the presidential candidates stump speeches. It should be raised in every Senate election. I mean, this matters to people. One of the things I was trying to do in the book was to show, you know, this is not some ethereal thing about what would you like the law to be like. When you look at the inequality in our country and the fact that the middle class is hollowing out, when we read these articles about how 40% of the country couldn't come up with $400 in an emergency, a lot of this is because of the Supreme Court. And we need to relate this to people as, you know,

the court is about, you know, your paycheck. It's about, you know, it's as important to your household budget as affordable care is, you know, the Affordable Care Act. The court as a kitchen table issue. Yeah, it's a kitchen table issue, right. And we're not hearing anyone talk about that, and they should be. So is part of that just because the court is almost shrouded from the public in this kind of veil of mystery. If you're not a lawyer, very few people actually could tell you who is on the court, the number of people on the court are, what the courts do, not just the Supreme Court, but all of the lower federal courts. I mean,

is that part of the gap in making the case to the public, like most people don't know what the court is doing. I think that's right. And, you know, one exception to this was, uh, we mentioned Lily Ledbetter who, you know, her story was horrible, right? She was a manager, the Goodyear Tire and Rubber in Gadsden, Alabama. She found out when someone left her a note that she was being paid much less than the men who were hired after her. She sues and then loses, of course, in this court because they say you had to sue within 180 days of when they first started underpaying you. And she had no way of knowing she was being underpaid. So terrible, terrible case.

But what was different there is Lilly Ledbetter is an amazing woman who went out there and spoke publicly and became the face of this issue. And lo and behold, the first law that President Obama signed when he became president was the Lilly Ledbetter Fair Pay Act. But part of the reason for that is this amazing woman who said, you did this to me, I'm going to make sure everyone knows what you did to me. And we need more of that. We need faces on these stories. We need people to hear about, you know, Mayetta Vance, when I was putting together the slideshow, I actually looked for a photograph of her.

There's no photo. And I called the lawyer who represented her and he said, you know, she, you know, did not want to be the face of this story but also she really felt beaten down first by Ball State but then by the court system and you can see why I'm totally empathetic to her but we need these faces out there saying look at what this court is doing to ordinary working people who just want to go to work in the catering department and not be racially harassed. You know, put that out on the campaign trail. Well, I mean, that's also part of the work of the court. I mean, if you read the Supreme Court opinions, even where they are

anchored by a record that is just filled with this kind of human interest story, like the Mesa's, for example, or Mayetta Vance, the court kind of drains it to this bloodless disposition of, you know, statutes of limitations or whatnot. So part of it is how they write about their work, how they do their work. You might say that the opinions, if they are public documents to be consumed, they are actually drained of any of the elements that would make them interesting to the public. That's absolutely right. The people and their stories disappear. And particularly when the conservatives are ruling against people like May in advance, you barely can figure out who she is or what happened to her. That's exactly right. So I mean, they're erased from the picture. Absolutely.

So, okay, let me take a step back. And the book is focused on this question of income inequality, economic inequality, and the way in which the court has basically foreclosed opportunities to make this a bigger part of our jurisprudence of constitutional law. So you might imagine two ways that we could address income inequality or economic inequality through constitutional law. One might be a kind of equal protection way, which is to consider the poor a vulnerable group for purposes of constitutional law and to provide for group-based remediation. Another way might be, again, through constitutional law, kind of rights-based or fundamental rights-based, to think of this along the lines of substantive due process and that there is a certain right

to a bare level of subsistence, the kind of thing that Frank Michaelman was talking about in his Harvard foreword. Which of these two paths would you favor and which do you think would be more likely to get traction? It's a great question. And, you know, when I started writing the book, the original introduction I wrote was, it began with a lengthy discussion of the Frank Michaelman Larview article, which I really admire a lot, and I knew him when I was in law school. And then contrasting it with around the same time Powell writes the Powell memo, this famous memo that Lewis Powell wrote right before he's appointed to the court, where he writes it for the Chamber of Commerce and says, you know, hey, business community, we need to come up with a plan to take over the court and make it rule for us. And so it was going to juxtapose these two different memos or law review articles written at the same time and say, you know, Powell won. I guess the reason I ended up moving away from that is ultimately, although I see a lot of beauty in what Frank Michelin was saying, I don't ultimately think it was a pragmatic approach. And I ended up, as I was working on the book,

being more attracted to the idea that the Warren Court should have granted poor people status as a suspect class and went about it that way. I don't think America is ready for a constitutional right to subsistence. And I think that if I had focused on that too much, it might not have been persuasive. So, okay, so I'm with you. So maybe not a right to subsistence. How would we draw the parameters of a suspect class that is based on indigens or poverty?

Yeah, it's very tricky. And, you know, one reason they say that it was beginning to be thought about in the 60s is really poor people weren't even thought of as a group until the 60s. It was really during the 60s that we began to even think of poor people as a class. But yeah, it's always going to be fuzzy around the edges. And a lot of this comes up with setting the poverty line, right? What is the poverty line? Who is poor? So there's, that's, you know, not an easily answered question. Then the other part of it, though, that's difficult is how do you say that a law unconstitutionally burdens the poor? Because almost every law burdens the poor, right? I mean, you know, oh, you're charging a dollar to get on the bus. Well, that burdens the poor more than, you know,

than the rich or, you know, you're going to have a fee to get into a national park. So both parts of that question become very difficult. Who is poor and what is so much of a burden that you're going to say it's unconstitutional? I don't have need answers to it, but what I would have liked would be for the court to go down that road and do it the way the court does it, case by case, and say this law goes too far. You know, one thing I think tomorrow, as I mentioned to you, I'm going to be speaking somewhat like this on Saturday, actually, with Peter Edelman, who is a hero in the poverty rights movement and actually was one of the Clinton administration officials who resigned in protest of Clinton signing the 1996 law.

The worst thing Bill Clinton has ever done. There you go. So Edelman wrote a Law Review article, which I talk about in the book, where he says, well, one of the things we could have done if we'd recognized the poor as a suspect class was go after the inequality in welfare laws, right? Like right now, if you're in California and New York, your welfare is really not sufficient. It's certainly not munificent. But if you're in Arkansas or Wyoming, it's just terrible. And very few people in Wyoming get welfare at all. Well, this is a federal program.

Isn't that a violation of equal protection that people in some states are at least getting some welfare and people in other states are not? So there are ways we could have used this suspect class that we don't know exactly how it would have played out, but it would have made things a lot better. Yeah. So let me sort of bring it back to the present day court. One of the cases on the table this term is the Affordable Care Act. Again, some more. This is a law, I think, that is really aimed at addressing the question of income inequality, especially as it concerns the provision of health care services, which is one of the major drivers of bankruptcy, of consumer bankruptcy and indigence in the United States. What do you expect the court to do in this particular case? Is this going to be a moment where the chief justice swoops in in his tights and cape and saves the Affordable Care Act once again? Or

is this the moment where you have a full five and you can robustly strike this down? Well, Yogi Berra said predictions are perilous, particularly about the future. So but I do think that Roberts did not want to strike down the Affordable Care Act, and I don't think he wants to now. What I'm more worried about is if Trump gets one more appointment to the court. I do think it's probably dead. And I get flashbacks to, as I mentioned, having written a book about the beginnings of the New Deal,

when that court aggressively struck down the National Industrial Recovery Act, which was FDR's big plan to, you know, to help victims of the Great Depression when they struck down the Agricultural Adjustment Act. I think we could get to that moment again with literally if Trump is reelected. So I think we're probably okay with this case right now, although who knows. But I think that lurking down the road could be, you know, major attacks on them. So a second term not only unleashes an emboldened president, but also further emboldens the court. And getting one more justice, because as we saw with the Fortas story,

boy, one justice makes such a difference on this court. Right. Okay. So we have come to that time where we are incredibly depressed and it's time for you to ask questions. So I think that like if your book's argument stands that the court has historically protected the corporate interest and wealthy top percentage of the country and Congress has been proven to both Democrats and Republicans heavily favor corporate big donors. And the presidency, even within the Democratic primaries, the question of corporate donations is a big one out there. Where do we start to find the...

Where do you propose that we start to find the protections of economically disadvantaged people in the country? Boy, it's a great question. I mean, you know, some of that is, you know, what, how can we hope to change our politics? I do think so much of it comes down to campaign finance, as I mentioned, you know, you know, a lot of people say we need a constitutional amendment to overturn, you know, not just Citizens United, which gets the focus, but really Buckley versus Vallejo, right? But, you know, the good news on that is there is a lot of support for campaign finance regulation. And, you know, Citizens United was heavily opposed by Republicans, right?

No one likes the idea of the rich controlling politics. So I would like to see a movement, really a bipartisan movement, around taking money out of politics. And yes, I think a constitutional amendment, but that should be the next constitutional amendment we all work for. Well, the part of the book where you talk about the aftermath of Citizens United is actually chilling.

Like the idea of House representative senators on both sides of the aisle going down to these skiffs call centers where they just dial for dollars for hours and hours and hours. And they have these quotas that are put in place by the parties themselves. And so it's dramatically changed the nature of the work of Congress and also the interests that are able to attract Congress's attention. Right. It's so hidden from view. As you say, there are these private call centers right near Capitol Hill and both parties have them. And members of Congress are supposed to

go there for hours and hours and hours every week. And they're talking to rich people all day long, hearing what rich people want. Does that affect them? Absolutely. So you talked a little bit in your conversation about the role of the court as sort of not being as visible in politics as either Congress or the presidency. And I was wondering whether or not you think that has sort of helped or hurt sort of the court's efforts and whether you think the so-called successes or at least improvements of the Warren court coincided with an increased visible role of the court in politics. Interesting. Yeah, no, it's a great question. The Warren court was much, you know, much more famous than the courts before it, right? I mean, for better or worse, I mean, you know, during the Warren era, you could drive around certain parts of the country, and there were big billboards that said impeach Earl Warren, everyone knew who he was. And that was because he was changing lives, you know, the court was so dramatically. So it was a well known court then. And, and I do think the obscurity of the court now allows them to do a lot of bad things because, as we were, you know, in favor of the wealthy, if they understood that Buckley versus Vallejo led to the fact that, you know,

Adelson and his wife have given $300 million to Super PACs in the last 10 years. This is Sheldon Adelson. Sheldon Adelson, yeah. If this were, if people knew this stuff and knew that the court was doing it, I think it would have a big effect. So I think that, you know, really we need to try to shine more of a light because I think, you know, it might shame them a bit. Turning to the concept of the income and wealth inequality issue and its growing exacerbation, et cetera, the richest states in the country are blue states, and they clearly are going to be safe blue states for the Democrats in the presidential election. Trump won last time and looks to win this time because he wins in all

the poorest states. And those are the ones that, for instance, as you point out, don't even get the Medicaid treatment supplements, et cetera, that a Medicaid poor person would. And most of these instances of these horrible treatments come out of these poor regions. How do we explain the inability of these people to not vote their economic self-interest? Like they go to the polls and they vote for the guy who says you're going to get nothing and we're going to get it all. It's not because the billionaires that Sanders likes to talk about are voting for Trump. That's not where he's winning. He's winning in these states where the poorest people are turning out to vote for him. What would make them actually

vote their self-interest? That's a big question. And, you know, it was posed years ago as what's the matter with Kansas, right? And I think we're all struggling with that. I mean, I lived in Alabama for a while and, you know, that is about the red estate that there is. And you're right. I mean, they are so poor. They also get so much more money from Washington than they send to Washington. I tried to point that out to them. And in my state, New York, it's the reverse. But these are very complicated cultural, tribal issues. I think if we can crack that nut, we could change the country. But I don't have an easy answer to it. My former colleague at Berkeley, Ian Haney-Lopez, wrote a book called Dog Whistle Politics, which attempts to address some

of this. Last question. So as far as I know, most of the good Warren Court decisions protecting the poor remain at least formally on the books. So let's say someday there's a successor to the Warren Court. It's favorable to those precedents. What are like the litigation strategies or test cases or policies that you think are ripe for challenging building on those earlier cases? I know you mentioned disparate welfare benefits across states, but I was wondering if there are any others that you thought were like the low hanging fruit there. Yeah, it's a great question.

You know, a lot of it comes down to there is this one terrible decision, right? So we mentioned Goldberg versus Kelly, which was the case that said that you have a right to a hearing. Just two weeks later, the court issued this decision, Dandridge v. Williams. And I mentioned it because it was the case that led Ed Sparrow to say, you know, we could have had a different America. That was a case where the court not only upheld a terrible family cap in Maryland that said basically larger families, after a certain point, we get no more in welfare than smaller families. But the language they used, they basically said, you know, welfare is one of these things that the court just can't get involved in. It's up to government and policy people. You know, we're washing our hands of it. Dandridge needs to be overturned, right? Because that was such a firm closing of the door

on welfare. I think it can be, right? I mean, things get overturned all the time, but I would say it's not like, it's not like that's not standing there as a big obstacle. It is. And I think at Brooklyn Law School recently, they had a conference about, yeah, about, you know, you know, what a sad moment Dandridge was for anyone who cared about poor people. And it was so. But I would say the start would have to be overturning Dandridge, you know, going back to the Warren Court idea that we have to care more than ever about poor people and about things like welfare subsistence. And then if we did that, Goldberg set a nice tone of poor people matter, welfare matters, and we could keep moving on from that.

But so I think overturning damages is the key to the whole poverty law world. All right, on that note, we will conclude the evening. Thank you so much for our colleagues at NYU Law and especially the NYU student chapter of the American Constitution Society for partnering with us. Thank you so much for this evening, Adam. We wish you great success with your book. I'm Melissa Murray. Thank you for your engagement tonight. Keep up with the Brennan Center's work by signing up for their newsletter at BrennanCenter.org and following them on Facebook and Twitter. Thank you all for coming tonight.

Thank you.