Woulda, Coulda SCOTUS

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Woulda, Coulda SCOTUS
Date: March 27, 2021
Host: Dahlia Lithwick
Guest: Adam Cohen, author of Supreme Inequality: The Supreme Court’s 50-Year Battle for a More Unjust America

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Episode Overview

This episode focuses on how the U.S. Supreme Court has shaped—and, as guest Adam Cohen argues, often entrenched—structural inequality and poverty over the past five decades. Dahlia Lithwick and Adam Cohen revisit the brief, transformative moment during the Warren Court when protecting the poor was nearly constitutionalized, then track the Court’s sharp turn away from economic justice under Nixon and beyond. Cohen, drawing from his acclaimed book, dissects pivotal cases and the personalities and political machinations behind them, especially the ousting of Justice Abe Fortas, arguing the trajectory of American poverty would look starkly different if the Court's composition had not shifted when it did.

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Key Discussion Points and Insights

The Myth of the Supreme Court as Defender of the Underdog

• Supreme Court's Real Record ([04:59]):
  • Adam Cohen highlights the enduring "myth" that the Supreme Court champions vulnerable minorities and the underdog, a narrative fueled by landmark decisions like Brown v. Board of Education and reinforced by popular culture.
  • Quote:

    "If you really look at the history of the Supreme Court, boy, it couldn’t be more different...during slave times...upholding slavery...after the Civil War...upheld segregation...struck down laws against child labor...upheld eugenics."
    — Adam Cohen ([04:59])

  • Most of the Court’s actual history has not reflected this narrative—periods of progressive decisions are rare and brief.

The Warren Court Era: "A Nanosecond" of Progress

• The Warren Court fleetingly moved toward recognizing poverty and class as suspect classifications deserving constitutional protection.
• Groundbreaking Cases ([09:32]):
  • Gideon v. Wainwright—Right to appointed counsel if you can’t afford one.
  • Struck down poll taxes and “man in the house” rules that penalized welfare recipients ([09:32]).
  • Goldberg v. Kelly—Right to due process hearing before losing welfare benefits; described as the “high watermark” for poverty law.

The Nixon Counterrevolution and the Fortas Pivot

• Richard Nixon's strategic, relentless effort to alter the Court's trajectory is extensively detailed ([13:40]).
  • Driving Abe Fortas off the court was pivotal; Nixon threatened Fortas and his wife with prosecution to secure his resignation.
  • Quote:

    "...if Fortas had not been driven off the court through real shenanigans and illegality by Nixon, that fifth liberal vote would have been there to give poor kids all across America a better start in life. So I think it is really one of the great tragedies in Supreme Court history."
    — Adam Cohen ([13:40])

Collapse of the Poverty Rights Movement at the Court

• With Nixon’s appointees, the Court snapped away from the idea of the poor as a protected class.

• Turning Point Case: Dandridge v. Williams ([22:08]):

  • The Court upheld welfare caps penalizing large families, moving to a stance of near total deference to government decisions about welfare.
  • Phrase: “Deconstitutionalization of poverty law” ([22:08])

• Gideon’s Legacy Eroded:

  • Right to counsel exists, but the quality bar is so low (e.g., sleeping lawyers) that indigent defense is often perfunctory at best.

The Role of Justices’ Backgrounds

• Lithwick and Cohen discuss how personal histories—like poverty in childhood—shape judicial empathy and doctrine ([27:08]).
  • Exceptionally poor backgrounds among the Warren Court Justices influenced their sensitivity to the realities of poverty.
  • Modern Court: only Sotomayor and Thomas can claim such roots, yet their jurisprudence diverges sharply in empathy toward the poor.

Rodriguez v. San Antonio: The Road Not Taken

• The near-success (and ultimate failure) of claims that education is a fundamental right and that school funding must be equalized ([30:32]).
  • Quote:

    "If it had just happened a couple years earlier and it hit the Warren Court, there absolutely would have been five votes. But tragically, Nixon got to the court before the poor kids in San Antonio."
    — Adam Cohen ([31:12])

Campaign Finance and Rising Inequality

• Citizens United and preceding decisions like Buckley v. Valeo opened the floodgates to corporate and wealthy individual influence in elections, locking in political advantages for the rich ([35:22]).
  • Quote:

    "Congress can't do this, Congress can't do this, Congress can't do this, because rich people, corporations must be able to spend. They've been just incredibly lenient towards all of these election administrators whose real purpose is to stop various people from voting."
    — Adam Cohen ([43:51])

  • Structural opposition to things like raising the minimum wage are attributed to this entrenched influence.

Voting Rights Erosion

• The Court’s blessing of voter roll purges, gerrymandering, and the evisceration of the Voting Rights Act disproportionately hurts the poor and minorities ([38:56]-[46:16]).
  • The paradox: big business “defended democracy” in 2020 for its own stability needs, not out of public-minded benevolence ([40:26]).
  • The Court’s refusal to intervene in the 2020 election is read as self-preservation, not a change of heart ([43:51]).
  • Quote:

    "There is a concept just in elections and voting generally—close enough to cheat...I think maybe in part this is that this election wasn’t close enough to cheat."
    — Adam Cohen ([43:51])

Alternate History: What Could Have Been

• Cohen insists, had the Court remained progressive—if Fortas or the Warren majority had persisted—fundamental equality in education, labor, and political representation could have become the American constitutional norm ([47:28]).
  • Desegregated, equally funded schools, stronger unions, responsive legislatures, and a more equal social order were possible, but “it’s been undone for the last 50 years.”
  • Quote:

    "We live in levels of inequality now in this country that we haven't seen since around the time of the 1920s. And it didn't have to be this way. We could have had a country where more people had a true shot at the American dream."
    — Adam Cohen ([49:44])

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Notable Quotes & Memorable Moments

• Myth vs. Reality of the Court:

  "We all grew up with this myth, right? The Supreme Court, the champion of the underdog. ... But if you really look at the history ... it couldn't be more different."
  — Adam Cohen ([04:59])

• Impact of Fortas’s Removal:

  "...that fifth liberal vote would have been there to give poor kids all across America a better start in life."
  — Adam Cohen ([13:40])

• Citizens United’s Impact:

  "Absolutely, these floodgates have affected policy... it's the money they give that lead members of Congress to vote their campaign contributors, not the overwhelming sentiment of the public."
  — Adam Cohen ([35:22])

• On What Could Have Been:

  "We would have had truly integrated education where every American went to a school that represented the racial breakdown of the metropolitan area."
  — Adam Cohen ([47:28])

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Important Timestamps

| Timestamp | Segment | |-----------|-----------------------------------------------------------------------------| | 04:59 | Debunking the myth of the Court as underdog champion | | 09:32 | Warren Court’s advances for the poor; landmark cases for poverty rights | | 13:40 | Nixon’s crusade to change the Court and force out Abe Fortas | | 22:08 | Collapse of poverty rights—post-Warren decisions and their impacts | | 30:32 | Rodriguez v. San Antonio: missed chance at educational equality | | 35:22 | Campaign finance cases and resulting inequality | | 38:56 | How Court decisions have facilitated voter suppression | | 43:51 | The Court’s silence in the 2020 election—strategy or principle? | | 47:28 | Counterfactual: what a different Supreme Court could have meant for America | | 49:44 | Cohen’s summation of a lost era of possibility for equality |

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Tone and Style

• The conversation is frank, nuanced, sometimes bleak but always clear-eyed, with moments of ironic humor, sharp critique, and sorrow at missed opportunities for justice.
• Both Lithwick and Cohen maintain a legal academic’s clarity, but never lose sight of the real-world stakes for poor and working-class Americans.

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Summary Takeaway

Adam Cohen contends that the Supreme Court’s rare alignment with the poor in the 1960s amounted to a “nanosecond” in its long history, a promising arc cut short by calculated political maneuvering, most notably Nixon’s removal of Justice Fortas. Since then, the Court has unmade economic justice at every opportunity—from campaign finance to welfare and voting—cementing an America increasingly riven by inequality. The lesson, for Lithwick and Cohen, is that constitutional law is not just abstract: it is destiny for millions.

Transcript

[A]

If Fortas had not been driven off the court through real shenanigans and illegality by Nixon, that fifth liberal vote would have been there to give poor kids all across America a better start in life.

[B]

Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law, the rule of law, voting and the Supreme Court. I'm Dahlia Lithwick. The court heard arguments this week in a couple of cases, including a key question about unions. The court is also back in the news because of new pressure coming from the left that is being imposed on Justice Stephen Breyer, wanting him to step down immediately and let Joe Biden name his successor. And also calls by Senator Sheldon Whitehouse of Rhode island for Merrick Garland to rent reopen the investigation into Brett Kavanaugh that he feels was not complete at the time of his confirmation. And we're going to be delving into some of that with our guest this week. Efforts to oust justices from the not so long ago past tell us that the more things change, the more they don't ever really change at all. Later on for our Slate plus members, Mark Joseph Stern is going to come in to talk about that big unions case at the court, guns at the Ninth Circuit, and Georgia's massive pitch to suppress so many votes that Senate Democrats will eventually kill the filibuster. In addition to an exclusive bi weekly romp through all of jurisprudence with Mark Stern in the members only segment of this show, Slate plus members also get benefits like zero ads on any Slate podcast, bonus episodes of shows like Slow Burn and Dear Prudence. And of course, you'll be supporting the work that we do here on amicus. It's only $1 for the first month. To sign up, please go to slate.com amicusplus and as ever, we thank you for your support. But first, we want to tackle an issue we often talk around on this podcast without necessarily speaking directly to it, and that is poverty. We have certainly discussed components of income inequality on the show, whether it's about granting speech rights to billionaire donors who want to influence political campaigns, or whether it's giving powerful business interests really broad rights against their workers and workers grievances. But I don't know that we've ever actually done a show directly on this question of the intersection between the Supreme Court and poverty. And so we want to correct that right now with a conversation with Adam Cohen, whose book Supreme Inequality, The Supreme Court's 50 year battle for a More Unjust America came out in 2020 and is out this month in paperback. Adam's book is an almost heartbreaking catalog of the Court's trajectory from a government institution that came really glancingly close to speaking up on behalf of the poor in the 1960s to the one that we know today that unerringly favors the rich and big business. And as Adam writes in his conclusion to the book, today, wealth and equality in America is just about where it stood in 1929, right before the Great Depression. The top 1% controls 40% of the nation's wealth. And we don't often think about it this way, but the Court has been a principal architect of that vision. Adam is one of the keenest legal journalists in the country. He served on the New York Times editorial board. He served as a senior writer at Time magazine. His last book, imbeciles the Supreme Court, Eugenics and the Sterilization of Carrie Buck, was an absolutely riveting, award winning chronicle of the Court's flirtation with the eugenics movement. We had him on the show to talk about that book. We're so excited to talk about this next one. Adam Cohen, welcome back to the podcast.

[A]

Thank you, Dalia. It's a pleasure to be here with you.

[B]

And I want to start with this seemingly obvious question, Adam, because we're all taught, and you open the book with this we're all taught this very cheerful narrative about how the Court exists to protect vulnerable minorities. At a minimum, the Court has to ensure equal justice under the law that's emblazoned on the building itself. But the main point of your argument is that actually, when it comes to poverty, the Court has done more or as much to create the structural income inequalities we see today than any of us actually believe? So my very obvious question is why are we so in love with this narrative about the Court defending the underdog when it did so only briefly and glancingly and hasn't done so before and is not doing so now?

[A]

It's a great question to start with. Absolutely. I think we all grew up with this myth, right? The Supreme Court, the champion of the underdog. And, you know, we grew up with it being fed to us through movies, books about Brown versus Board of Education, about desegregating the South. And it's a nice story. It's a story we'd like to believe. But if you really look at the history of the Supreme Court, boy, it couldn't be more different. Think about what the Court was doing during slave times. We know Dred Scott, right? They were upholding slavery. Look what they did after the Civil War when there was segregation in the south and Plessy v. Ferguson, they upheld segregation. What did they do during the Progressive Era when the President and Congress really got around to protecting the little guy and the worker, struck down laws against child labor and upheld the liberty of contract of the bosses. And then you mentioned my last book, which was about Buck versus Bell, the eugenic sterilization case. But yeah, when eugenics was sweeping the country, more than half of the states had eugenic sterilization laws. The Supreme Court, 8 to 1 upheld eugenics sterilization. We go to the beginning of the New Deal when FDR is trying to get the country back on its feet with the Agricultural Adjustment act and the National Industrial Recovery act, the Court strikes it all down. Then Korematsu, of course, during Japanese internment, there was a brief period during the war in era when the Court did a lot of good stuff. And for some reason that has become the Supreme Court's brand and it shouldn't be.

[B]

And I guess the other thing I want to just ask as a framing point is, and you make it clear in the book, but I think we should talk about it really explicitly. The Court has In the last 50 years since, since the time you're talking about the sort of cratering of that vision of the Warren Court, but it has done really good things in terms of women's reproductive rights, in terms of marriage equality, in terms of, you know, curbing executive powers in wartime. So what's. Is there a theory for why the Court has actually in some ways continued to do really good things even into the 80s and 90s, the era that you describe as, as it's all coming apart in terms of poverty and yet persistently does the wrong thing for labor and for the poor and for vulnerable people in other situations. In other words, is there a way to parse this that explains why the Court just threw up its hands at the end of the 60s on poverty, but continued to do some really important liberty affording things for a long time after in other areas?

[A]

Well, I think you might just say that in a capitalist system like ours, wealth and money and the current income and, and wealth distribution are really where the rubber hits the road. Right. And look at how corporations actually have gotten a lot better on things like affirmative action, on inclusion, on gay rights and things like that, but they haven't gotten good on distributing their money to the poor. Right. I mean, that's really the thing that separates the corporate mentality from a more progressive outlook. And it's just as you Say, yes, the court has actually slowly but eventually champion things like same sex marriage. They've come around. It took them a while on women's rights and things like that, but yes, on the poor. There was a brief period during the war and era where the court really believed in the problems of the poor and, you know, had language that we would never see now about how poor people's problems are not of their own making, their societal problems. And that was a brief period when there was a strong liberal majority, but also those liberals were people who had grown up in poverty themselves. Right. It was a very different court, a very empathetic court, but boy, it was a nanosecond, and we're far away from that again.

[B]

So that brings us exactly to where I want to really start, because I think that nanosecond you describe when the court comes just within a hair of enshrining meaningful constitutional protections for America's poor, and then it all collapses. The court changes under Nixon. But I wonder if you can just set the table a little bit, Adam, and tell us about some of those cases that really were, at least in the rear view mirror, startling in terms of the scope of what the Warren court was trying to do. Maybe start with the challenges to the man in the House laws, or you can start wherever you think the marker is, but give us a sense of what, in that brief glimmering moment, the court was trying to do.

[A]

Well, one of the most stunning cases from that period is Gideon v. Wainwright, the famous case where the Court said that if you can't afford counsel, counsel must be appointed to you. Now, that's really striking. Huge. Right. Because there are so many criminal suspects in the United States, if you look at the entire nation, and that required every state, every locality to come up with a way to actually find lawyers for all these poor defendants. As a constitutional right, that was huge. So both the doctrine was huge, but even the implementation was more huge. So you saw that. And then throughout the 60s. Yes. A whole series of cases in 1966, they strike down the poll tax and say that that discriminates against poor people who want to vot. You mentioned the man in the House rule. Yeah. And King versus Smith. This was actually a very common rule across the country, that if the welfare authorities heard, even by rumor, that a mother had a boyfriend and the boyfriend could be someone who, as in the Smith case, just visited occasionally, had his own family, that would be enough to throw the children and the mother off of the welfare rolls. Supreme Court strikes that down. And then, as you allude to in these cases, we begin to see language that is suggesting that the Court might say that poor people in poverty are a suspect classification. And the story on that is that back in the 1930s, in a sort of obscure case called Caroline Products, the court wrote a famous footnote in which they said, you know, we're going to start identifying groups that are so excluded from the political process that we need to give them special protections. And lo and behold, the court starts doing that for religious minorities, racial minorities. What's remarkable is that in the 60s, this nanosecond, the Court actually begins to say, no, let's look at poor people and how poor people are placed in America. They actually have these same attributes like racial minorities and religious minorities. Maybe we should make them a suspect class. If they had so much, could have followed so many laws, might have been struck down because they discriminated against the poor. But after doing a lot of stuff with welfare law, and since you asked for a little bit of a laundry list, another very important case there was Goldberg vs. Kelly, which in some ways was the high watermark of poverty law, where the Court actually said that it's not that you have a right to welfare, but if your current receiving welfare, it is so disruptive to your life if the government suddenly takes it away that you're entitled to a due process hearing. And that, you know, it was sort of revolutionary, was another thing that like the right to counsel. Every jurisdiction in the country had to set up a process. How are we going to forward hearings to all these people on welfare if we're going to take it away? So these were very bold, far reaching decisions. And then as you know, I recount in my book, just two weeks after Goldberg vs. Kelly, the court issues one of the worst poverty law rulings and everything change.

[B]

So this brings us to Richard Nixon, whose single minded obsession with changing the Court. I think you say it's just he cared that much. And so he's monitoring the health of the older Justices and he's sweeping in, you know, his Attorney General and federal investigations and putting pressure, direct pressure on Earl Warren. He eventually annihilates Abe Fortas career at the Court. We should note, it's unbelievable. He was gunning for Brennan, he was gunning for Douglas. I mean, this was really a crusade. Can you talk a little bit about first of all, what Nixon was doing and how he was doing it? I guess I'm just curious because Fortas keeps popping out in your kind of counterfactual throughout the book where you say Had Fortas remained on the court, X would have happened. Had Fortis. So it feels as though this is the linchpin, that even though Nixon was really lucky and able to seat other people, somehow for you, forcing Fortas off the court in ignominy was really, really the pivot.

[A]

Yes, indeed. And, you know, people often ask you when you write a book, like, what did you learn? And some of what I wrote about I knew already from law school and on. But the Fortis stuff was really new because, you know, when I talk to my professors about Abe Fortis, like, you know, liberals always looked down at the ground like it was a big embarrassment, like, oh, he did terrible things and you know, we can't even mention his name. That isn't entirely wrong, but it's certainly not entirely right. So, yes, Nixon is the key. And we have this Warren court and it's chugging along, doing some of the great stuff we were talking about. And then Nixon's elected with this vow to really undo the court. And just by a little bit of luck, a lot of scheming, he gets to appoint four justices in three years, which is remarkable. That's one of the biggest turnovers in court history and totally redirects the court. As we mentioned, some of it was luck that he comes in and the Chief Justiceship is opening up because Warren had already said he was leaving. And in a whole separate Fortas saga, they managed to block Fortas becoming the next Chief Justice. So there's a vacancy there. And yes, some other justices are in poor health and eventually leave. But as you say, one of the key moments in the court's history, Nixon driving Abe Fortas off the court. Now, Fortas was not an angel by any means, and he did some things that I think you and I would say were not good practice for justice. But the main thing that Nixon got him on was taking some fees to consult for a foundation while he was on the court. Now, other justices have done that. Other judges were doing that at the time. There was no prohibition. And as we know, there's actually no set of ethics rules for the court. It's self enforcing. I think that everyone who's looked at it closely, and there's a Penn State political science professor who did a long detailed book on this, said that what he did really wasn't so bad. But anyway, Nixon used that to threaten him with prosecution and even worse, to threaten his wife. She was a lawyer at the same firm he was at. She'd been investigated for some possible impropriety of obligations, worked out and cleared. But Nixon threatened to put both of them in jail and he succeeded in getting Fortas off the court. And Fortas was probably not wrong to leave in that the Nixon Justice Department really put them both in jail. So there was some self preservation going on there. But yes, that gives Nixon, crucially, one more seat, the fourth of the four seats. And you're absolutely right. When I look at some of the cases in the next few years, some of the most heartbreaking cases, including one very close to my heart, which is Rodriguez v. San Antonio School Board, the court came within one vote of saying that school funding in every state in the country had to be equal. We couldn't fund rich school districts more than poor school districts. That was five to four. And if Fortis had not been driven off the court through real shenanigans and illegality by Nixon, that fifth liberal vote would have been there to give poor kids all across America a better start in life. So I think it is really one of the great tragedies in Supreme Court history.

[B]

We'll be right back. It's funny, Adam, I was telling you just before we started taping that I reread the book for Believe it or not, the third time this week. It's, it's, it's that good and persuasive. But one of the things that really struck me on this go round reading about Fortis was just the irony that the things he was being tagged for, you know, doing this lectureship at a law school that was paid and as you said, doing consulting, you know, for a guy with shady, more than shady, very shady associations. But there's a weird way in which the thing that Fortas is tagged for is enriching himself in inappropriate ways. And that this becomes the catalyst for a court that goes on to enrich the wealthy. I just don't, I hadn't caught the irony the first couple of go rounds, but it's really striking that the claims against Fortas is that he's doing something hinky with his financial affairs. And that gives birth to the entire arc of the story that gives us the plutocracy we live in today.

[A]

Totally right. And you know, the lectureship you mentioned, I mean, you know, it's thousands of dollars and you look at the millions and billions and, you know, trillions of dollars that have flowed from some of the court's rulings. And yes, it was penny ante. Another irony. I mean, there's so many sad ironies, but the people trying to, you know, breaking the law to put Fortis in jail for being unethical themselves. Went to jail. Right. Like, you know, like, like Mitchell was the leader of this. How could we poss is to accept this small amount of money and then Mitchell, you know, Nixon attorney General ends up in jail for Watergate crime. So, yeah, I mean, there's so many levels of irony. But what's really sad, you know, from I think our perspective, is there are these actual poor school children in poor districts around the country who really should have had this ruling, should have had more funding for their schools. And it was, you know, the Nixon machine that really cheated, got one of their voters off the court, and led to them really being deprived of a lot of educational opportunity.

[B]

I want to ask you just one contemporary question, because last week we heard news that Senator Sheldon Whitehouse of Rhode island had sent a note to Merrick Garland asking that Kavanaugh be reinvestigated, both for the financial questions that were surfaced around the time of his confirmation and just for the. What he calls, I think, Senator Whitehouse called it, the fake FBI investigation. And again, I think reading that side by side with your book, it raises these questions. I know I've been asked enormous numbers of times in the past week. You know, is there a way to reinvestigate Kavanaugh to push him off the court? Should the FBI and the Justice Department re litigate and reinvestigate these claims? And I guess I wondered how you squared this move. Let's have the Biden Justice Department go after Brett Kavanaugh in light of what you really dug up on the extent to which the Justice Department was central to terrorizing Fortas off the court.

[A]

It's a great question, and you're really pointing to a really, I think, key tension here. Right. So should the Justice Department investigate true improper behavior and illegality? Yes, always. Because we are a nation of laws. And if the Trump administration really did something illegal, improper to get someone on the court, you know, yes, because we need to be nation of laws. But you're right that I think some of us liberals don't. Enough talk about the tug in the other direction, which is anytime the White House, the administration, investigates someone on the court, it's inherently going to be political and destabilizing to the court. And, you know, we have this idea of what the court should be independent of the other branches. And above it all, when you have the president using the enormous powers of the Justice Department to yank someone off the court, particularly of the opposite view, that's not a great position to be in. But on the other hand, you know, another thing I point out in the book is the Republicans have been so good in every way in stacking the court, in working the refs, getting every advantage to get a majority of five. The Democrats are always the ones who, like, play by the rules, who hold back, who don't push as hard. So this could be another example where Nixon gets Fortas's seat, but maybe Kavanaugh. I'm not saying I don't know what Kavanaugh did or what the FBI did, but if he did much worse things, the Democrats might be reluctant to pursue them in the same way.

[B]

So you hinted at this, but let's go there. Nixon gets his court, and as night follows day, we get a series of five, four rulings that reverse the trend line that was beginning to really see that poverty wasn't, you know, immoral, it wasn't a sin, it wasn't about weakness and laziness, that it's fundamentally something that government should be redressing. All of that boom on a dime gets reversed. Can you sketch out some of the ways that the court just completely does a 180 on the very cases that you had sort of laid out at the top of this interview?

[A]

Sure. You know, and I mentioned that it was really just two weeks later that everything changed after that incredible victory in Goldberg versus Kelly. So the poverty rights movement was celebrating tremendously that this right to a hearing before you're thrown off welfare. And there was a poverty rights movement, and they were looking to the court. Increasingly, two weeks later, there is a case out of Maryland, Dandridge v. Williams. And Dandridge was a really interesting case. It was a case where Maryland, like most states, had very, very low welfare payments. So the people who were getting welfare were living below the poverty line. But it as bad as some of the states in the South. But they have a budget crunch, and they decide to solve the budget crunch in part by instituting family caps. So they say that after a certain number of children, the more children you have, you're not going to get any more welfare. That applied even to families like the Williams, where it wasn't that they were on welfare and continued to have children, it was that they had a large family and then needed welfare and applied as a large family. So when Maryland does this, the poverty law movement, poverty lawyers challenge it under equal protection. And they say if you're giving the same welfare payments to a family of eight as you are to a family of four, the later children in the larger family aren't getting any payments. At all. And it was a good claim. And if it had prevailed, it would have not only established that equal protection principle, but would have opened the door to something that a lot of academics and welfare rights leaders were calling for, which was for the Court to begin looking at the substance of welfare, not just at procedures like in Goldberg v. Kelly, do you get a hearing? But really, is the welfare amount you're getting enough? And this actually reached a high water mark when Frank Michaelman, a Harvard law professor, wrote this famous introduction to the Supreme Court issue of the Harvard law review in 1969, where he said that as he sees it, there could be a 14th Amendment right to some level of subsistence. So that was the idea. And Ganges was a really clever way to bring that claim, because it wasn't saying the court should say, here's how much money everyone should get. It was saying that in this very modest way, the court should look. Look at the amount of money, because it's being done in a way that violates the equal protection rights of the large family. The court rules 5 to 4 against the welfare family. And Potter Stewart, who I mentioned how at the height of the Warren era, some of the justices who were the most eloquent about the rights of the poor, like Thurgood Marshall, like Abe Fortis, like Arthur Goldberg, like Earl Warren, grew up in poverty or close to poverty. Potter Stewart had sort of the golden preppy resume of Yale, Yale, Oxford, Wall street law firm. Father a big judge in Ohio, like just a life of enormous privilege. And he's the one who says, no, no, this welfare family is not entitled to any more. And also, by the way, and this was the really tragic part, we're kind of getting out of the business of looking at welfare because government has to make some hard decisions when they're giving out welfare money. And it's just not something we're going to get involved in. And one academic has called the deconstitutionalization of poverty law. So we go from that phenomenon we were describing where the court is inching towards maybe saying the poor or suspect class, to the court saying, you know, if it involves poor people, welfare, like the Constitution, you know, virtually doesn't apply. That was a big example, but we see it in many other areas. And, you know, I mentioned Gideon because Gideon was such an important early ruling on behalf of the poor. You know, eventually the court issues its ruling itself, Strickland, where it interprets, okay, we've said that poor people have a right to appoint a counsel. Now we're going to look at what the quality of that counsel is. And they set the bar so unbelievably low. The burden on defendant showing that their lawyer was incompetent was set so high that literally there's a whole area of cases, the sleeping cases, you know, your lawyer was asleep, your lawyer was asleep while you were being cross examined. Well, let's look at, at which specific questions you were being asked while you were cross examined. And generally people lose their effective assistance cases even when their lawyer was asleep. So that to me is just sort of a high watermark of the court saying, okay, we did give you this right during the Warren era. You have a right to a lawyer, but boy, it's not going to be much. And sleeping lawyers, it may be relatively rare, but what's incredibly common is the defendant who gets a incredibly overworked public defender or appointed counsel who has 150, 200, 300 cases, no time to meet with their clients, no time to review the facts, certainly no time to investigate them. So the defendant is almost forced to plea bargain because there's no way anyone's actually going to put up a defense for them. And the court has said that's fine. So those are two examples of cases where a robust right in the case of right to counsel or the progression towards a right were just firmly slapped down by the post Warren court.

[B]

You've mentioned twice now, and I think it's a good observation that part of the difference between the Warren Court and the current court is the number of Justices who grew up in poverty or near poverty, some in tremendous life threatening poverty and life altering poverty. And, and I was reflecting, the only two current justices I guess you could say that about are Sonia Sotomayor who grew up in poverty and Clarence Thomas who did as well. You mentioned Justice Ginsburg in the book, but I think it certainly wasn't dire her childhood. But I wonder if you can draw any kind of straight line between that sense that holy cow, this could happen to me. It did happen to me. And a court that seemingly has no idea what it's like to try to vote if you're poor or to be a Walmart greeter who's being subject to harassment if you're poor or to, as we're about to talk about, go to school if you're poor. And it's tough to square that with Clarence Thomas's jurisprudence. But I guess I wanted to you to take a crack at this question of how much real life experience inflects on the way you end up doing justice.

[A]

Yeah, I think it so often does. I think during the Warren era, it definitely did. You look at someone like Thurgood Marshall. He grew up among a lot of poor people. He represented a lot of poor people. And there were cases where the majority of would say, you know, oh, you know, this fee isn't a lot of money. It amounts to a pack of cigarettes a week. And he would say in dissent, well, actually, a pack of cigarettes a week is a lot of money for some people. And, you know, someone of Potter Stewart's lived life experience wouldn't really appreciate that. So I think we saw that in the poverty law decisions in the Warren era and later in some of the dissents because, yeah, I mean, I think literally the living in the bubble, the not understanding that things like coming up with $20 to get a driver's license so you can then use that driver's license to vote, that $20 can make a big difference. Something like getting to the polls. When they move the polls further away, not everyone can hop into their car and drive to the polls. And I think, yeah, we do see it with Sotomayor and with Thomas. So with Sotomayor, she's been incredibly bold in some cases of really speaking out about her different perspective from her lived experience of growing up in a housing project, project in the South Bronx with a single mother injecting herself with medication because she was a juvenile diabetic. She has an empathy, I think, that comes from that. And Thomas is more complicated, but I think a lot of his views are actually a reaction to that. Right. I mean, if he'd grown up middle class, I think he might not be as intense about a lot of these issues. And, you know, we've seen over the years he said some, you know, really awful things about his sister. Right. And his sister relationship, relying on welfare and things like that, that show an anger, I think, of someone who was in that world and has just decided he's going to turn his back on it fully. So I think we see a polarity there. Sotomayor sort of using the empathy of her upbringing and Clarence Thomas sort of angrily turning his back on it. But both, I think, informing their current views on things like poverty and voting and everything else.

[B]

Let's talk about Rodriguez versus San Antonio. This is the education case that you mentioned would have really fundamentally changed the way education is financed across the country. And maybe the best way to talk about it is to just explain what the claims were. That again, glancingly close to saying that poor students are a protected class for constitutional purposes. Or that education is some kind of fundamental rights. I mean, we look back at that, I remember learning it in law school and being like, ha, ha, ha. That was never going to happen. It almost happened.

[A]

It was so close. It's exactly right. Like now we look at it just as you say, it's like, boy, that's a road no one was ever going to go down. But we were going down that road. And if you look at the first of all the academic literature at the time, people, you know, professors across the country were saying, yes, this really is an equal protection clause. But more important than that, many courts were so holding, many lower federal courts, many state courts were saying, of course school funding should be equalized. And in the first court to hear the challenge to Texas's school funding system, it strikes it down under the equal protection clause. And as you say, I mean, this is actually a pretty straightforward claim, right? Because what does equal protection say? It says that when the government acts, it has to treat everyone equally. Now, the government often doesn't have to act. You know, they don't have to set up a public school system. But if you're going to set up a public school system, you're the government, you should treat everyone equally. So that means that like, there should be the same number of books and the same number of teachers and all that. So that's very straightforward. And then the other part, as you say, is the Supreme Court had long held that there were certain rights that were fundamental. And you know, oddly enough, you know, one of the ones they've been most enthusiastic about is travel. You know, and I love to travel myself. I do it as much as I can. It's been a tough year not being able to travel. But when you think between travel and education, I mean, education, as you know, the dissenters have pointed out in Rodriguez and other cases, it's so pivotal to everything else we do, right? I mean, we're a democracy. How do you expect people to vote? How do you expect people to follow what their elected officials are doing? How do you expect them to be citizens, citizens of our democracy if they're uneducated? So, yes, both of those things seem self evident that the court should have said that if the government's going to provide education, it should do it equally. And if it's going to provide education, Education is a fundamental right because of how fundamental it is. So it gets up to the court. And yes, you know, you've tagged me as the broken record on Abe Fortis, but yes, I mean, it's literally true that if Abe Fortis had been there, the plaintiffs would have won. It's also true if they just filed the case a little bit earlier. Right. I mean, they just missed the height of the Warren Court. So now we think it couldn't have happened. But like many of the moments of progress in the 60s, Rodriguez evolved out of a student protest. You know, one day the Latino students in the San Antonio school district said, you know, this is just not fair. We can see a couple miles away how beautiful the school. And we have a school building where you can't even go to some of the floors because the school is falling apart. We have terrible textbooks. We just don't have the resources. They walked out and they started a movement that led their parents to find a lawyer to bring this lawsuit. If it had just happened a couple years earlier and it hit the Warren court, there absolutely would have been five votes. But tragically, Nixon got to the court before the poor kids in San Antonio. That.

[B]

And now let's return to our conversation with Adam Cohen, author of Supreme Inequality, the Supreme Court's 50 year battle for a More Unjust America. You also draw a really straight line, Adam, between the court kind of gutting campaign finance regulations, McCain, Feingold, the end of Buckley versus Vallejo, and the ascent of. Of this moneyed class that just doesn't answer to the law anymore. And there has been, I think, some debate about what Citizens United did and did not do in terms of campaign finance. But your critique is pretty devastating in terms of what the outcome of Citizens United was. So can you lay it out? Because I think that sometimes we forget and you actually, it's really pointed in the end of that chapter. You talk about not only the kind of inequality that results, but also just the lack of trust in government that results after Citizens United. So I wonder if you could just kind of lay out your case for why Citizens United proved so devastating beyond this very academic academic question about corporate speech and money.

[A]

Sure. And Citizens United was absolutely a tragedy. But I'll start with the first of the tragedies, which was Buckley versus Valeo. After Watergate, people were so cynical about government, kind of like they are today, but they had great reason to be there. And the Watergate investigations turned up corporations that were delivering money and cash and bags to campaigns and things like that. So Congress actually, amazingly, did the right thing. They passed a very strong campaign finance law to respond to the Watergate excesses and malfeasance. The Supreme Court gets the case now. The D.C. circuit had gotten it first, and the D.C. circuit did the right thing. They upheld almost the entire law. And they said, of course this is totally constitutional and there's a strong interest in preventing corruption. And all these good things gets the Supreme Court, they strike down huge parts of the law. In particular, they create this crazy distinction between giving money to a campaign and spending independently. And they, they say that spending independently really is protected by the First Amendment. There aren't the corruption problems of handing it to a campaign. So that was really the first opening of the door to spending lots and lots of money by rich people on campaigns. And then, yes, the court, you know, waivers a little, but they pretty much make things worse over the years, culminating Citizens United, where the court says that corporations have a First Amendment right to spend money out of their treasuries to affect elections. And that's just so much money. Right. Think of how rich the richest corporations are. I mean, the richest Americans have gotten very, very rich. And we all know Elon Musk and Jeff Bezos, but compared to Apple, compared to Microsoft, they have so much money all free now to spend it on campaign. Absolutely. These floodgates have absolutely affected policy. You look at yet again, it was so sad to see in the last week or two, the Congress unable to raise the minimum wage. And when did they last raise the minimum wage? 2009. Right. So imagine not getting a raise since 2009, which is true of working class people who don't live in a state with a higher state minimum wage. Why did they do that? Well, whenever a minimum wage referendum is put on the ballot, it passes overwhelmingly. Polls show overwhelming support from voters. So what is stopping this exactly? It's absolutely the retail industry, it's the fast food industry, it's the money they give that lead members of Congress to vote their campaign contributors, not the overwhelming sentiment of the public. And we absolutely saw that again, we see it always with tax policy. So when Trump got his, his horrible tax law passed, I think we reached new levels of elected officials actually saying, you know, we have to pass these huge tax cuts for the wealthy, otherwise they're gonna stop giving to the Republican Party and we'll lose all of our elections. Right. So the impact of tax laws like that has been so enormous. Rich people have gotten such breaks, poor people have not. And that has absolutely led to the huge accretion of wealth at the top. These are absolutely because of the, the Buckley line of cases through Citizens United that have made it so understandable for the strategic member of Congress to say, oh, I don't care if 80% of the people support hiking the minimum wage. I'm listening to my good friends at the retail trade association and we see this in issue after issue and workers are heard and unions are heard and people on welfare are hurt.

[B]

I feel like I have to ask you the follow on question. You're voting chapter is equally dispiriting and depressing and you flag all the ways that the court has blessed, you know, voter roll purges and gerrymandering and doing away with what's left of the Voting Rights Act. Each and every one of these things obviously puts a heavier burden on the poor. I was thinking as I reread it this week, Adam, that one of the heroic stories of the 2020 election is the ways in which corporate America kind of behind the scenes came together to make sure that the country didn't crater into a flaming coup. And I just was really mindful this go round of the ways in which oh big business will save us has become when, when government itself is really wobbly. There's this reason to believe that those big moneyed interests you just described and all their power have some self interested reason to protect democracy. And I guess I don't even know quite what the question is other than irony. That's a big ironic outcome that we're sitting here saying oh, you know, thank goodness the country didn't take descend into Civil War in 2020 because behind the scenes pulling the levers, the chamber of commerce was hard at work protecting democracy.

[A]

It's a beautiful story and you know, and I think it just shows how kind hearted you are in your outlook on everyone, including corporate America. And there is that aspect but more cynical way to look at it. I hate to be the one to point out is, you know, corporate America does what's good for corporate America America. And is it good for corporate America if the country implodes? No, people will stop shopping, you know, they won't, they won't be buying new cars. You know, some of their plants might be burned up. Yes, corporate America has a strong interest in stability. Stability is good for the stock market and taking over the capital probably would have caused the Dow to plunge. So yes, corporate America stepped in. There is corporate America stepping in when working people haven't gotten a raise since 2009? Don't even stepping in on the other side, what is corporate America doing about the enormous amount of income inequality we have? Is corporate America in any way reigning in CEO compensation which has risen so much compared to the average workers wage? No. So I mean I think corporate America is ruthlessly pursuing capitalism. It's what it does. If the leaders weren't doing it, they would be replaced by people who did. And capitalism, I think, can believe two things, that it would be bad if a ragtag group of Trump supporters took over the Capitol and ended our democracy. But they can also believe we don't really care that the middle class is being hollowed out and so many millions of Americans are being pushed into poverty.

[B]

I just want to be really super clear that what sounds like kind hearted generosity might just be like weird Canadian inflected cynicism. Because my question did not come from a place of kind heartedness, but I fear that it may have been interpreted as such. I do want you to talk about voting and the 2020 election for a minute, Adam, because you again, so many of the things that you wrote a year ago came true on stilts this time around and we are really seeing it in the raft of attempts to suppress the vote. Again, unequally, this will fall on people of color and the poor and the elderly and the young. Um, and I wonder if you want to talk for a minute about the ways in which the Supreme Court, having blazed a trail of vote suppression in the last couple of years and really signaled, if we were talking about October of 2020, that there might be five votes at least in the dicta, to go really all in on very, very wacky theories of what courts can do in an election. The court pulled back, right? It did not enter the voting game and I think there probably were five votes that might have been willing to do that. What's your thought on having just cynically said that corporate America acted in its own self interest? Was the court just simply by refusing to get involved in the 2020 election, just protecting its own self interest in the same way? In other words, this isn't a shift to the court saying, hey, you know, vote suppression is bad or throwing out all the votes in Philadelphia might be super racist. This is just the court saying we're going to be silent this time because it would be crazy for us to get involved.

[A]

Well, it's a great question and boy, I think it's complicated to parse all the different motivations. But one thing I would say you one immediate reaction I have is there is a concept just in elections and voting generally close enough to cheat, right? I mean, if the margin is very small, you can cheat. And we might say that Bush versus Gore, the 2000 election was close enough for the Supreme Court to cheat. So it was not that hard for them to do what they did, which was to step in and stop the vote counting and to hand the election to President Bush. I think maybe in part this is that this election wasn't close enough to cheat. Right. I mean, I think if this court had been presented with the exact same facts in Bush versus Gore, I think they might have done the same thing. But I think it's also worth noting what you were saying at the beginning of your question. I mean, I always come back to, like, my little paid advertisements for the Warren court. But in the early days of the Warren Court, like, when they did their redistricting cases, they just, like, they honestly believe what is the important thing for the court to do in election cases. It's to make sure that the will of the people is represented. So they struck down all these improperly districted states that had, you know, some districts were heavily populated, some were lightly popular. They got the same representation, and the court said, no, I mean, legislature should represent the will of the people. And that was their kind of abiding view of election law. Boy, we are so far from that now. And while the court has taken the. This muscular stance with regard to campaign finance, like, oh, Congress can't do this. Congress can't do this. Congress can't do this, because rich people, corporations must be able to spend. They've been just incredibly lenient towards all of these election administrators whose real purpose is to stop various people from voting. So you come up with an incredibly crazy voter I.D. well, that's fine. We're gonna allow you to do that. You come up with a purge of the voter rolls that, like, say, if someone hasn't voted for a little while, we're going to remove them from the rolls. Even though there's a federal law saying you cannot remove someone from the rolls if they haven't voted for a while. Whatever it is, the court is going to do that. So I think these are ways that like, yeah, I don't think the court would have stepped in and said, you know, Stacey Abrams is elected governor, we're going to overturn that election. But, boy, things like their approach to voter roll, perhaps purges stop people like Stacey Abrams from getting elected governor in Georgia. So I think they're working the margins, but they're working very effectively.

[B]

I think the last question I want to ask Adam, and this is with the caveat that we could have talked about workers rights and unions and criminal rights and a whole bunch of other stuff. And I just am trying to pack everything into this conversation that I can, but I do feel like this last question is kind of the exact flip of the first question, which is, again, one theme of the book is, but for Fortis, Nixon slash, Rehnquist slash, I think at this point we could say Donald Trump. But for those things, the world would look really different now. And I would love to hear your rosy summation of in the various buckets that you've laid out, education, criminal justice, voting rights, whatever, what could have been had some of these suits been brought a few years earlier, had the composition of the court not changed? What would the American sort of constitutional and statutory posture towards the very poor look like?

[A]

It's a great question. And, you know, I think that what all this is really about is if Nixon hadn't done what he did 50 years ago, we would have had 50 years of just more equality, of a climate of equality in which every American had the chance to rise to the same extent and, you know, achieve their dreams, including economic dreams. So, absolutely, education, you know, we mentioned Rodriguez, but it was a case the next year, Milliken v. Bradley, which was, you know, just as important, where the court came within one vote of saying children are actually entitled in real terms to an integrated education. And if that, if all the kids in Detroit almost are black and all the kids in the suburbs almost are white, we're going to have an introductory remedy to make sure that kids in Detroit actually go to intimidation schools within one vote. And again, yes, Fortis could have been the fifth vote. We would have had equal funding. We would have had truly integrated education where every American went to a school that represented the racial breakdown of the metropolitan area. So we would have had kids 50 years ago starting out with equal educational opportunities. We would have had unions, would have been much stronger, and they would have been able to go into workplaces and actually organize people. People. And absolutely, we would have a different Congress because it wouldn't be responsive to these piles and piles of corporate and rich people money. And they would be responsive to electorates which it would be easier for poor and working class people to vote. But also we wouldn't have gerrymandered districts. So we wouldn't have all these members of Congress saying, I can do whatever I want because I'm going to get reelected. They would have close elections and they would have to to answer for the people. So I think all of this would have led to just more equality in every way. We would have been pushing more, you know, people at the bottom would have had more power to push their way up, and people at the top wouldn't have been able to grab as much. And I think we would have. As you started this off quite rightly, we live in levels of inequality now in this country that we haven't seen since around the time of the 1920s. And it didn't have to be this way. We could have had a country where more people had a true shot at the American dream. And that's what Nixon started to undo. And it's been undone for the last 50 years.

[B]

Adam Cohen served as a member of the New York Times editorial board and as a senior writer at Time magazine. He's the author of Imbeciles, the Supreme Court, American Eugenics and the Sterilization of Carrie Buck and Nothing to fear, FDR's inner circle and the Hundred Days that Created Modern America. Book is Supreme Inequality The Supreme Court's 50 year battle for a More Unjust America. It came out last year. It is out this month in paperback. And Adam, as always, it is just illuminating and slightly depressing to have you on the show.

[A]

Oh, it's totally my pleasure. Always wonderful to talk to you, Dalia.

[B]

And that is a wrap for the this episode of Amicus. Thank you so very much for listening in. Thank you so much for your letters and your questions and your thoughts. You can always keep in [e-mail] or you can find [e-mail] Amicus podcast today's show was produced by Sara Burningham. We had research help this week from Daniel Maloof. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two short weeks.