MARCH 2020 75Cohen
describes the
erosion of
individual
protections
and the
amplification
of corporate
power.suggests, is more influential in shaping national life
than many Americans realize. Blockbuster decisions
such as Bush v. Gore of course make headlines and
attract widespread attention. But Cohen seeks to
explore the Court’s place in government in a coher-
ent, structural sense—and the role it plays deeply
troubles him:
The Supreme Court is more than a legal tribunal,
ruling on disputes between parties—it is also an
architect. The Court’s interpretations of the Con-
stitution and other laws become blueprints for the
nation, helping to determine what form it will take
and how it will continue to rise. For the past half-
century, the Court has been drawing up plans for a
more economically unequal nation, and that is the
America that is now being built.In our civic imagination, the Supreme
Court protects the downtrodden and safeguards
fairness. equal justice under law read the words
over the Court’s entrance; justice the guardian
of liberty proclaims the building’s eastern facade.
This is the noble dimension of the Court’s identity,
which the justices emphasize to the citizenry. Cohen
disdains it as self-congratulatory cant, describing the
Warren Court’s egalitarianism as an exception rather
than the rule. The modern Court has more frequently
protected the interests of wealthy elites than of minori-
ties and the vulnerable. Cohen writes that in the 50
years since Warren Burger replaced Earl Warren, “the
Court has, with striking regularity, sided with the rich
and powerful against the poor and weak, in virtually
every area of the law.”
As these lines suggest, Supreme Inequality is ambi-
tious in scope. Cohen describes the erosion of indi-
vidual protections and the amplification of corporate
power in areas as diverse as criminal justice, business
and employment law, and voting rights. He structures
sections of the book as lessons in retrenchment: What
the Warren Court hath given, the Burger, Rehnquist,
and Roberts Courts hath taken away. For example,
Cohen’s chapters on poverty law trace the descent
from Warren Court cases such as King v. Smith, which
struck down a state rule that allowed authorities to
terminate the welfare benefits of a single woman with
children if a man regularly stayed with her, to Burger
Court opinions such as Dandridge v. Williams, which
upheld a Maryland rule that capped welfare payments
regardless of the number of children in a family. Simi-
larly, in his section on voting rights, Cohen shows
how the Court regressed from the Warren Court’s
seminal Baker v. Carr decision, which asserted the
Court’s jurisdiction over political redistricting, to the
recent Rucho v. Common Cause, which ruled partisan-
gerrymandering questions “nonjusticiable” and there-
fore beyond the justices’ purview. A key factor in the
poverty and voting case trends has been raw political
power: whether Democrat- or Republican-appointed
justices hold the majority.
One of Supreme Inequality’s strengths is Cohen’s
ability to spot parallels and draw connections for read-
ers over a range of legal disciplines. This signposting
is essential for a book that covers so much ground.
Take his discussion of the controversial 2010 decision
Citizens United v. FEC, which famously invalidated a
federal law prohibiting corporations from spending
money to support or denounce political candidates
(while still forbidding direct contributions to them).
Cohen contrasts the Court’s solicitude for corporate
speech with its unwillingness to protect ordinary cit-
izens wishing to post campaign signs or distribute
political leaflets in public spaces:When the wealthy and powerful wanted to use their
money to influence elections, the Court swept aside
an elaborate campaign finance regime that had been
enacted by Congress and signed by the president,
responding to strong popular demand, to help a
nation heal after a scandal [Watergate] that went all
the way to the White House. When poor and middle-
class people challenged bans on their ability to hand
out leaflets or post campaign signs, the Court sup-
pressed their speech, out of deference to Postal Service
mailbox rules and municipal concerns about clutter.Another, more striking example of Cohen’s cross-
categorical trend-spotting compares the Court’s Eighth
Amendment case law on “cruel and unusual punish-
ments” with its due-process decisions on excessive
punitive-damages awards against large companies.
In 2003, the Court refused to upset a 25-years-to-life
sentence, under California’s three-strikes law, for a
man who shoplifted about $150 worth of videotapes.
However, just a month later, the Court overturned
a $145 million punitive-damages award against an
insurance company for egregious conduct toward a
customer, finding it disproportionate to the actual harm
incurred. (The insurance company refused to allow a
customer to settle a lawsuit with third parties on the
promise that it would cover the bill if he lost at trial,
but then, when he did, it refused to pay.) “The Court
had two very different ideas about proportionality of
punish ment,” Cohen writes: “one for corporations
under the Fourteenth Amendment Due Process Clause
and another for people under the Eighth Amendment.”
This is a sobering juxtaposition, but in mak-
ing it, Cohen risks populist overreach. Rather than
arguing that both the three-strikes case and the