THE WALL STREET JOURNAL. Monday, February 24, 2020 |A
The Meaning
Of Justice
Supreme Inequality
By Adam Cohen
(Penguin Press, 416 pages, $30)BOOKSHELF| By Adam J. White
I
n 2017, Martha Minow, then dean of Harvard Law School,
said that she had “long wondered why we call the
enterprise a law school and not a justice school.” It is a dis-
tinction well worth pondering. Under our Constitution, judges
pursue justice by applying the law without a partisan agenda.
Hence the words engraved on the Supreme Court Building in
Washington: “Equal Justice Under Law.”
Some would rather see the Supreme Court pursue justice
in other ways. In “Supreme Inequality,” Adam Cohen frames
the court’s duties in terms of economic inequality and
criticizes the court for failing to do what he believes would
reduce it. Mr. Cohen, who has covered the Supreme Court
for Time magazine and the New York Times, traces key
decisions from the mid-20th century to today to show a
steady decline in the court’s commitment to progressive
jurisprudence and thus, for
him, an erosion of justice.
Mr. Cohen concedes that the
court has not been uniformly
conservative over the past half-
century. In some ways, he
says—particularly when it
comes to social matters—the
court “has made the law more
progressive.” But on matters
that, in his view, affect equal-
ity—education, campaign fi-
nance, gerrymandering, the
rights of corporations—it has
been “not merely conservative
but in many ways extreme.” He ac-
cuses the court of committing “a systematic re-
writing of society’s rules to favor those at the top and disad-
vantage those in the middle and at the bottom.”
Mr. Cohen soon makes it clear that the court’s error, in
these instances and others, is not “rewriting” society’s rules
so much as declining to rewrite them. He wishes that the
court had rewritten state voter-identification laws and the
rules by which states fund education and draw electoral maps.
He especially wishes that the court had rewritten the Consti-
tution to create more rights for the poor. He believes that the
poor, as a category, should be included with other “discrete
and insular minorities” who receive extra protection from the
Supreme Court. He regrets that the justices have failed to
adopt a sweeping program—first put forward in a 1969 Har-
vard Law Review article—that would “guarantee a right to
‘minimum protection against economic hazard,’ ” including
“food, housing, and other basic necessities.”
The justices, it is true, have never come close to creating
such entitlements, certainly not under Warren Burger,
William Rehnquist and John Roberts, the chief justices from
the late 1960s to the present. For Mr. Cohen, it is the court
under Earl Warren, who presided from 1953 to 1969, where
his ideal version of justice almost became a reality.
Everywhere he looks, he sees the Warren Court on the verge
of announcing broad rights for the poor: It “seemed to be
moving toward” them; it “appeared to be edging even closer”;
it “made a gesture in that direction”; “there were indications”
that progress was imminent. Yet each time, the Warren Court
stopped short—sensibly, one might add—of the judicial revo-
lution that Mr. Cohen would have preferred.Readers not already familiar with the relevant cases and
constitutional text will receive little help from “Supreme
Inequality,” which reduces nuanced arguments to brief
descriptions of winners and losers. Meanwhile, Mr. Cohen
offers biographical descriptions to explain why judges have
voted for the poor or against them. “The five strong liberals
of the early Warren Court,” he writes, were all “born into
poverty, or close to it.” Today, Sonia Sotomayor and Ruth
Bader Ginsburg came “to the Court with personal experi-
ences that inclined them to look out for marginalized mem-
bers of society.”
Yet in his sections on the poor and their rights, Mr. Cohen
omits the biography of the modern justice who experienced
poverty more acutely than any of his colleagues: Clarence
Thomas. (A just-released film documentary, “Created Equal:
Clarence Thomas in His Own Words,” recounts his upbring-
ing in vivid detail.) Admitting no connection between Justice
Thomas’s impoverished childhood and his view of
constitutional equality—a view at odds with the one in
“Supreme Inequality”—Mr. Cohen saves mention of the
justice’s biography for a late chapter on cases involving
unions, asserting that “Thomas had little sympathy for
society’s downtrodden,” and suggesting that Thomas held “a
grudge against labor unions” that “supported Anita Hill and
opposed his confirmation.”
The chapter on unions is titled “Workers,” but Mr. Cohen
prefers unions to workers. InJanus v. American Federation of
State, County, and Municipal Employees(2018), the court
declared that the First Amendment protects public-sector em-
ployees from being forced to fund unions’ political agendas—a
win for millions of workers whose paychecks were being
docked by union leaders. AfterJanus, Mr. Cohen reports, “4.
million workers were instantly given the right to not pay at
all” for unions they had not joined. He doesn’t mean this as a
compliment; so much for workers’ rights.
Janus, likeCitizens United v. FEC(2010) and other cases
striking down laws that Mr. Cohen would leave alone, were
grounded in specific constitutional guarantees, especially in
the First Amendment.Citizens Unitedjudged certain
restrictions on independent political expenditures to be an
abridgment of the speech rights of unions and corporations.
Yet Mr. Cohen criticizes such decisions with minimal analy-
sis while pining for a court that, with much less constitu-
tional basis, would nullify a host of state laws.
A “different set of blueprints would have built a different so-
ciety,” Mr. Cohen concludes. The blueprints he prefers are not
the Constitution’s original meaning but progressive activists’
modern agenda. But some progressives know better. In a 2001
interview, Barack Obama rejected suggestions that the Warren
Court should have announced broader economic rights. The
court “never ventured into the issues of redistribution of
wealth and sort of more basic issues of political and economic
justice in this society,” he said, because “the court’s just not
very good at it, and politically it’s just very hard to legitimize
opinions from the court in that regard.”Mr. White is a resident scholar at the American Enterprise
Institute and an assistant professor at Antonin Scalia Law
School, George Mason University.Framing the Supreme Court’s duties in terms
of economic inequality—and criticizing the
court for failing to do what might reduce it.Bloomberg Joins the Unions
M
ike Bloomberg
pitches himself as a
moderate, business-
minded alternative to other
Democrats running for presi-
dent. But his plan to remake
the nation’s labor laws, re-
leased earlier this month,
wouldn’t be out of place in
the campaign literature of
Bernie Sanders or Elizabeth
Warren.
Start with Mr. Bloomberg’s
endorsement of a $15 mini-
mum wage, which has already
hurt the restaurant industry
in the city he once led. Quick-
service restaurant employ-
ment growth in New York
City averaged 7% between
2010 and 2015, according to
data from the state Labor De-
partment; in 2018 and 2019, it
was less than half that. In the
full-service restaurant indus-
try, the city has lost jobs for
the past two years, something
that hasn’t happened since
the early 1990s. If $15 is bad
for workers in Midtown Man-
hattan, imagine the conse-
quences in Manhattan, Kan.
Mr. Bloomberg used to ap-
preciate that reality. In 2009
a proposed $11.50 “living
wage” requirement for com-
mercial tenants killed a
2,200-job development for
the vacant Kingsbridge Ar-
mory in the Bronx. Mr.
Bloomberg said the outcome“couldn’t be worse.” The
city’s Economic Development
Corp. later released a 350-
page report by outside con-
sultants on the harm of liv-
ing-wage requirements. The
mayor even sued to invalidate
a living-wage law after the
City Council overrode his
veto.
What happened to that
Mike Bloomberg? His new la-
bor plan reads like a unionleader’s wish list. He would
ban right-to-work laws, forc-
ing employees in 27 states to
pay dues to a labor organiza-
tion as a condition of employ-
ment. He would try to skirt
the Supreme Court’s 2018
Janus decision and ensure
that “public-sector unions
have maximum flexibility to
collect revenue.” He would
follow California in undercut-
ting the many workers who
choose to be independent
contractors. He backs manda-
tory “card check” recognition
that effectively eliminates an
important democratic norm—
the secret ballot—from a vote
on whether to unionize. Un-
der Mr. Bloomberg’s plan, em-
ployers would be prohibited
from requiring employees to
attend an informational meet-
ing before a union vote.
These proposals are radical
even for Democrats. A na-
tional “card check” proposal
died in the Democrat-con-
trolled Senate in 2009. (In a
2008 op-ed on these pages,
George McGovern called cardcheck a “disturbing and un-
democratic overreach.”) More
recently, Democratic legisla-
tors in Virginia backed off a
proposal to eliminate that
state’s right-to-work law after
realizing that it would harm
the state economy.
As mayor, Mr. Bloomberg
had a frosty relationship with
the city’s unions. Stuart Ap-
pelbaum, president of the Re-
tail, Wholesale and Depart-
ment Store Union, accused
him of “turning a blind eye to
the plight and reality of some
of our city’s hardest-working
residents.” The mayor’s sup-
port of merit pay for teachers
led to repeated clashes with
the United Federation of
Teachers. Mr. Bloomberg
seems determined to atone
for his past—and workers will
pay for it.Mr. Saltsman is managing
director at the Employment
Policies Institute, which re-
ceives support from restau-
rants, foundations and
individuals.By Michael Saltsman
His labor-policy plan
could have come from
Sanders or Warren.OPINION
Is Big Tech
“downgrad-
ing human-
ity”? So says
former
Googler and
podcaster
Tristan
(rhymes with
“twist-on”)
Harris, direc-
torofthe
weirdly named Center for Hu-
mane Technology. Mr. Harris
and many of his fellow tech
skeptics describe humans as
little different from pets, be-
lieving everyone who uses
Facebook or an iPhone is a
manipulatable idiot. He
couldn’t be more wrong.
Mr. Harris preaches about
an “attention crisis.” OK, you
have my attention. Testifying
before the Senate last year,
he said tech companies are in
a “race to the bottom of the
brain stem.” He also claimed
humans in the 21st century
still have “Paleolithic emo-
tions.” Basically, “we’re chim-
panzees with nukes.” Wait,
did he just call you a chimp?
Elsewhere he has claimed
that social networks are de-
livering “outrage that works
on the piano key of your ner-
vous system.” The man can
certainly turn a phrase. He
explains that “technology is
getting better and better at
hacking human weaknesses.”
And you’d better put down
that glass, because “we’re
drinking from the Flint water
supply of information.”
Mr. Harris’s most fevered
claim is that social media has
Don’t Buy Into Big-Tech Hysteria
taken over politics. “We’re
not really in control of world
history anymore,” he says.
“The technology companies
that are shaping our informa-
tion sense-making environ-
ment are in control of every
major electoral outcome, and
whether people believe con-
spiracy theories.” And there
it is. It isn’t Hillary Clinton’s
fault she lost in 2016. It was
maybe the Russians and cer-
tainly Big Bad Tech. Mr. Har-
ris insists “one side is cur-
rently winning by there not
being regulation.” You can
probably guess which one he
means.
Mr. Harris believes “we’ve
been manipulated into this
multiyear-long hypnotic
trance,” and that “we need
someone to snap their fingers
and wake all of us up out of
this.” A savior, a messiah.
Might that someone be Mr.
Harris?
Alarmism can be a lucra-
tive business. In 2018 Mr.
Harris received funding from
eBay founder Pierre Omidyar.
He also has a deal with the
brother of climate scold Tom
Steyer to spend $7 million
and use $50 million of do-
nated media from Comcast
and DirecTV, which have
their own bone to pick with
Big Tech. Maybe that’s why
Mr. Harris insists that “hu-
man downgrading is the cli-
mate change of culture.” Uh
boy.
Last month Mr. Harris
asked Congress to launch a
massive public-awareness
campaign—“an inoculationcampaign,” similar to those
run in the 1940s by the Com-
mittee for National Morale
and the Institute for
Propaganda Analysis. I’m not
kidding.
Every generation goes
through tremors when some-
thing new arrives. Elvis’s
hips. Pinball. TV. Rock ’n’ roll.
Videogames. For the most
part, everyone turned out OK.
Sure, we’ve all gone down the
rabbit hole of hyperlinks andinsect-fighting videos. So
what? We’re bored.
Mr. Harris is right to say
we “need to upgrade human
capacity,” but the question is
how. Social media, which he
would kneecap through regu-
lations like banning micro-
targeted ads, is actually doing
that upgrading: training the
next generation of knowledge
workers, teaching them how
to multitask, think in several
dimensions, click and swipe
their way to information, and
find knowledge and solutions
in a noisy world. Free 21st-
century training.
Most important, users of
today’s media platforms are
getting used to identifying
fake news. Sorry, but people
aren’t stupid. Our internal de-
fenses against deceit and biasgo up when inundated and ir-
radiated with nonsense.
News flash: There are char-
latans and hucksters in the
real world—in “meat space”—
too. President Trump used a
sharpie to fudge hurricane
paths. Susan Rice blamed a
video for the murders in
Benghazi, Libya. The New
York Times recently said
“mourners” stormed the U.S.
Embassy in Iraq last year,
much as “students” took over
the U.E. Embassy in Iran in- There are free-trade
agreements that aren’t free.
And if you like your doctor...
Yes, those under 16 need to
limit their use of technology
as their brains develop, but
not cold turkey. Isn’t that the
job of parents rather than
government or nonprofits?
Remember when movies and
TV were damaging our
minds? Me neither. If any-
thing, traditional media
drives conformity, whereas
social networks at least allow
freedom of expression. Some-
how that’s now inhumane?
The cries of Mr. Harris and
other aggravated social-media
critics sound like demands to
turn back the clock to simpler
times. But there’s no putting
the toothpaste back in the
tube. Only fools will try. For
all its flaws, social networks
and artificial intelligence
keep delivering value and
utility to users, training peo-
ple for a world that moves in
nanoseconds. Better to teach
the next generation how to
keep up.That’shumane.
Write to [email protected].
An industry of
alarmists exaggerates
social media’s risks
and ignores its value.INSIDE
VIEW
By Andy
Kessler
Mexico City
A recent “in-
vitation” to
business lead-
ersfromMex-
ican President
Andrés Ma-
nuel López
Obrador to at-
tend a fund-
raiser at the
National Pal-
ace was an offer many couldn’t
refuse. Some 70 of the Mexi-
can “suits” who showed up re-
portedly pledged to spend 1.
billion pesos ($88 million) on
government lottery tickets.
About half the tickets in the
pot—another 1.5 billion pesos’
worth—remained unsold at the
end of the evening. The draw-
ing is scheduled for Septem-
ber, when up to 100 winners
will take home 20 million pe-
sos each. The proceeds, if any,
will be earmarked for public
assistance, which the presi-
dent says he will allocate to
the nation’s ailing hospitals.
It’s unclear whether the
scheme can succeed, but the
larger problem is that it looks
like pay-to-play. Presidential
fundraising for pet projects
has the whiff of illegality be-
cause the state dishes out
valuable concessions and no-
bid contracts and can let un-
paid tax bills slide. Yet when
AMLO—the president is known
by his initials—does it, no one
dares stop him.
The Mexican economy did
not grow in 2019 and the
standstill is expected to con-
tinue this year because busi-
ness and government invest-
ment has collapsed. To
understand why, look no fur-
Mexico Slides Toward One-Man Rule
ther than Mr. López Obrador’s
use of executive power to try
to make himself the savior of
the nation.
AMLO has a utopian vision
for Mexico in which he gets to
decide what economic fairness
looks like and how rich is too
rich. Think Bernie Sandersen
español. Not all wealthy peo-
ple are brought low—only the
ones who get in the way.
AMLO’s decisions to scrap
the construction of a new air-
port in Mexico City and to
force the renegotiation of nat-
ural-gas pipeline contracts
have received a lot of interna-
tional attention. His effort to
cap salaries at the central bank
may violate the Mexican Con-
stitution and is seen as a ploy
to chase out qualified techno-
crats so he can replace them
with political loyalists.
This smells bad. Behind the
scenes it’s even worse, as “the
law” is used to spread terror
among opponents. A key tool
is the Financial Intelligence
Unit, which derives its power
from international commit-
ments to combat money laun-
dering. The unit, which is in-
side the Treasury, is supposed
to investigate suspicious finan-
cial activity and pass the infor-
mation to the attorney gen-
eral. In practice, critics say, it
is being used to gain control of
institutions that ought to be
independent.
Mr. López Obrador remains
popular because Mexicans still
see in him a guy who is willing
to stand up to corruption and
crony capitalism. Hot money
chasing high interest rates in
Mexico has held up the peso,
and U.S. ratification of a newNorth American free-trade
agreement has removed a
source of market uncertainty.
Yet 15 months into AMLO’s
presidency, the weak economy,
rampant violence and a break-
down of the public-health sys-
tem have diminished his popu-
larity. All eyes are now on the
midterm elections of July- If his Morena Party and
its allies win two-thirds of
Congress’s lower house and
strong support among the na-
tion’s 32 governors, he will
have smooth sailing in the sec-
ond half of his six-year term. If
the opposition surges, he may
become a lame duck.
Meantime, he is working to
consolidate as much power as
possible. The lottery spectacle
at the National Palace show-
cased his muscle. He lavished
praise on the tycoons, congrat-
ulating them for meeting their
moral obligation to contribute
to his causes.
Privately many Mexicans
snickered about what was seen
as a blatant act of extortion.
The misuse of the Financial In-
telligence Unit at the Treasury
is also worrying. It has been
employing its power selec-
tively to pressure the presi-
dent’s adversaries.
According to Article 115 of
the banking and credit law and
Article 41 of the anti-money-laundering act, officials at the
Treasury must safeguard the
confidentiality of ongoing in-
vestigations. Further, under
Mexican law all suspects are
entitled to the presumption of
innocence. Yet the unit has a
record of violating both norms,
making public statements of
condemnation and freezing the
financial assets of the accused
and their extended families
even before charges are filed
and without a judge’s ruling.
The chief of the unit, Santi-
ago Nieto, told me Saturday
that the prohibition on speak-
ing about investigations ap-
plies only to the attorney gen-
eral’s office and that he uses
his freedom of speech to ex-
pose findings. He said freezing
assets is an administrative tool
to block the moving of money.
But Mexico’s Supreme Court
has ruled that freezing assets
without a court order is un-
constitutional, and the attor-
ney general has complained
about the lack of due process.
Nevertheless, the weaponiza-
tion of the unit continues,
probably because it gets re-
sults.
The head of the regulatory
commission on energy and a
Supreme Court justice were
both named as suspects—
along with family members—
in possible financial crimes.
Both maintained their inno-
cence. But the freezing of as-
sets meant possible financial
ruin even if there was eventual
exoneration. Neither was ever
charged but both resigned.
AMLO replaced them with his
own handpicked appointees.
Tick-tock, Mexico.
Write to O’[email protected].The president uses
his authority to
muscle business and
suppress dissent.AMERICAS
By Mary
Anastasia
O’Grady