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

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.

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])

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])

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 |

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.

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.