76 MARCH 2020
Culture & CriticsSUPREME
INEQUALITY:
THE SUPREME
COURT’S FIFTY-
YEAR BATTLE FOR
A MORE UNJUST
AMERICAAdam CohenPENGUIN PRESStakes and away from scholarly reflection. President
Richard Nixon “killed off the liberal Warren Court.”
The Court “rescued another corporate bad actor from
a jury’s damage award.” Its rulings “have saved corpora-
tions many billions of dollars that otherwise would have
gone to people they had injured or cheated.” It is even
moving the country in the direction of “two distinct
totalitarian nightmares” (complete surveillance and a
prison state). Ultimately, Cohen writes, “the Court had
not merely stopped its efforts to lift the boots of oppres-
sion off the necks of the poor; it had also gotten in some
kicks of its own.” With these strident lines and more
like them, Cohen will put off many readers.
That last point, with its overheated language
straight out of Orwell, reveals an ironic limitation of
a book that declines to follow the justices into their
conference room for a little backstage dish. Cohen’s
stridency occurs in a discussion of the Court’s 2012
decision that upheld the Affordable Care Act’s indi-
vidual mandate. Along the way, seven members of the
Court voted to strike down the ACA’s expansion of
Medicaid. That was one of the kicks against the poor
that Cohen charges the Court with delivering. But as
we learn more about the case, it appears that two of
those seven votes, by the liberal justices Elena Kagan
and Stephen Breyer, may have been cast in return for
Chief Justice John Roberts’s crucial vote to uphold the
individual mandate. Kagan’s and Breyer’s pragmatism
may well have bought enough goodwill from the chief
justice to save health care for millions of Americans.
Was their decision a worthy trade-off—or should
judges be doctrinal absolutists in the tradition of Gins-
burg and Scalia? That is a discussion worth having,
but Cohen closes off debate by resorting to the crude
imagery of boots on necks. Moreover, by declining to
examine the shifting allegiances and conflicting views
of the justices as they grind out the Court’s sausage,
Cohen also eclipses hope. The Supreme Court is not
returning to the crusading liberalism of the Warren
Court anytime soon. That leaves the pragmatism of
dealmakers like Kagan and Breyer as the best chance
for legal progressives to eke out wins, one case at a time.
But strategy aside, the Court’s central role in our
politics and public life is beyond question, especially
as dysfunction paralyzes Congress and the presi-
dency. Renewing our focus on the substance of the
Court’s business—its individual decisions as well as
their cumulative effect—is hard work, and more vital
than ever.Michael O’Donnell is a lawyer in the Chicago area. His
work has appeared in The New York Times, The Wall
Street Journal, and The Economist.punitive- damages case should have come out differ-
ently, Cohen might consider that only one of the cases
was decided incorrectly. A 25-year sentence for shop-
lifting does seem grossly inequitable. But that does not
make draconian punishments of companies just. As he
concedes, the concerns animating the Court’s punitive-
damages decisions have attracted liberal justices as well
as conservative ones. Justice John Paul Stevens, a great
progressive who wrote one of the first decisions strik-
ing down an excessive award (it was 500 times the size
of the actual damages), harbored legitimate mis givings
about a result like that and what it says about due-
process principles such as fairness and notice.
In addition to spotting trends, Cohen plays out the
consequences of Supreme Court decisions beyond daily
headlines. For example, he writes that with amplified
political influence, corporations pursue policies that
favor their interests, often at the expense of consumers
and workers. He follows the line from Citizens United
to the defeat of minimum-wage increases and the enact-
ment of state right-to-work laws, which weaken unions
by preventing them from requiring workers to pay dues.
When a minimum-wage bill was voted down in the
Senate in 2014, it was by all appearances a failure of
the political branches. “No one thought to blame the
Court,” Cohen writes, “even though it was its decades
of campaign finance rulings that made the billionaires’
wishes count for so much and public opinion count
for so little.” This is a fair point, if somewhat stretched.
Voters did, after all, elect the senators who failed to pass
the minimum-wage bill, and unions have been shrink-
ing in influence and political power for generations.
Cohen makes a respectable case that the Court
has protected the powerful at the expense of the
vulnerable, but he downplays lines of case law that
undercut his thesis. The result is a book that is fre-
quently persuasive but overly pessimistic. He devotes
only a few paragraphs to watershed gender-equality
and gay-rights decisions that future generations may
someday view as the Brown v. Boards of our time. He
also overlooks an enormously consequential series of
cases from 2004 to 2008 that restrained the Bush
administration’s excesses at Guantánamo Bay. The
question of the limits on executive power to protect
national security during wartime is one the justices
consider only rarely; the previous major precedent
was issued in 1952. For a structuralist like Cohen,
having opinions on the books that limit an overreach-
ing president should be big news. Yet Rasul v. Bush,
Hamdan v. Rumsfeld, and Boumediene v. Bush do not
receive mention in Supreme Inequality.
This unevenness shows up in the book’s rhetoric as
well. Although Cohen is relentlessly substantive, his
arguments can sometimes veer toward newsroom hot