“Supreme Inequality” by Adam Cohen[2020] is subtitled “THe Supreme Court’s Fifty-Year Battle For A More Unjust America.” He is not alone in this accusation. Nor, is he alone in documenting the charge with much evidence – often using the very words of the Supreme Court Justices to prove the case.
It is very important that we have a set of valid premises to discuss this oft-made charge. Let us proceed from the standpoint of this: “What would a reasonable person, given the evidence conclude?” What principles should guide the investigation? Consider these: WE judge by basics such as: “All men are created equal;” from the Constitution’s Preamble “..to promote the general Welfare..” Decisions that fail these tests are “wrong.”
Page 306-07: “These dual totalitarian visions [“King” & “Strieff”] are a logical extension of where the Court has taken the nation in the past fifty years. Economic inequality has risen at a furious pace, the middle class has contracted..the status of the poor..ever more precarious. This..makes firmer methods of social control…oppressive…policing likely if not inevitable.”
Page 305: “Sotomayor, in her own dissent..delivered a personal warning to the American people…”The Court today [Strieff]] holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language. This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants – even if you are doing nothing wrong.” As a result, anything the officer finds by “searching you” can be used in criminal prosecution.
SO – how does this effect ME? Check with any post-1933 dictatorship. The secret police had the RIGHT to stop you on the street, or invade your home. This is part of the overall 1969-2021 Supreme Court pattern. And – it is also part of the entire 1789-2021 pattern – excepting one era – of supporting the rich and powerful against the people.
In the name of “the law” much cruelty to people has been done. Cohen gives examples on pages 4l, 8l, 97, l03, 202, 288. Single Moms, Army vets with 3 kids, school kids, health care, older workers, innocent people pleading guilty, customers who were cheated, and on and on. Sometimes the Court said: “This isn’t our job,” etc. But corporations “needed” their help!!!
As many analysts have said: observe the PATTERN. Who are the consistent “winners” and “losers?” Who does the Court feel compelled to help, to not help? Are there rational bases for decisions, or, are they making stuff up? Is the Court following time-tested principles uniformly, or, are they “cherry-picking” parts of details? Is there any empathy for ordinary people caught up in crazy things beyond their control? Are the decisions reasonable – you can agree it was “fair.” Did they follow “All men are created equal?” Did the decision “promote the general Welfare?” Has the overall PATTERN made America more just, a better society, more humane?
Adam Cohen’s “Supreme Inequality” says “NO – the recent Courts have definitely NOT made America better. By international standards, America is worse off – and the Supreme Court is a big reason why. Cohen takes YOU through specific cases, explaining how and why chances to improve America were paths not taken.
Cohen is not alone. Listed below are others saying similar things. AND – all of this is the tip of the iceberg.
Adam Winkler – “WE The Corporations How American Businesses Won Their Civil Rights” [2018]. Much of it started with a lie in December, 1882, to the Supreme Court bout the “intent” of the 14th Amendment. From 1868 to 1912, the Supreme court decided 312 cases on 14th Amendment basis for corporations – and – 28 for African-Americans, for whom it was intended. There is NOTHING in the Constitution for corporations. Founders, including Madison, Jefferson, Wilson expressed fears for corporate power. George Mason refused to sign the Constitution because he felt it wasn’t strong enough against corporations
Laurence Tribe & Joshua Matz – “Uncertain Justice The Roberts Court and The Constitution {2014]. They note a Roberts Court pattern of attacking any Congressional effort to regulate, any regulation on anything [54,84]. They note that free speech is not necessarily good for regular people [139]. They say the Roberts court “has dealt critical legal rules a death of a thousand cuts – leaving many of our rights intact but making them effectively impossible to enforce in any court.” [284]
“The Roberts Court has issued a string of rulings that make it virtually impossible to escape arbitration agreements…..The result has been a rapid expansion of private arbitration as a parallel justice system…..With each passing day, public courts more permanently disappear as a real option for many Americans in their dealings with big business….”[295] “..the Roberts Court is determinedly proving ..it is..an anti-court Court.” [299]
Erwin Chemerinsky – “The Case Against The Supreme Court” [2014] “..the thesis of this book: The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.” [5] “..the Supreme Court usually sides with big business and government power and fails to protect people’s rights.” [6] “We should realize this is an emperor that truly has no clothes. For too long we have treated the Court as if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society. We have pretended that the Court is a neutral body discovering the law and then mechanically applying it. None [of this is] correct.” [14]
Chapters 5, 6, 7 are about the many failings of the Roberts Court – to only 2014.
Ian Millhiser – “Injustices The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted” [2015] “..the justices frequently ignored rights that are explicitly protected by the text of the Constitution….The justices..have routinely committed two complementary sins against the Constitution. They’ve embraced extra-constitutional limits on the government’s ability to protect the most vulnerable Americans, while simultaneously refusing to enforce right s that are explicitly enshrined in the Constitution’s text….they paved a trail of misery as a result. Few institutions have inflicted greater suffering on more Americans than the Supreme Court..” [xiii-iv]
David A. Kaplan – “The Most Dangerous Branch Inside the Supreme Court’s Assault on the Constitution” [2018] “For much of its history, the Court stayed almost entirely out of the affairs of Congress. Before the 20th century, the justices declared federal laws unconstitutional only 5 times. By midcentury, they were doing so at a rate of about one a term. And by the 1990s, the Court was throwing out 3 or 4 federal laws each term. The numbers didn’t suddenly go up because legislation was written with less care – or because the justices had become wiser.” [17]
“When the votes of justices in controversial cases can be predicted at the outset, constitutional law simply becomes partisan politics by another name. If you usually know beforehand how justices will come out – and if it’s a function of the political party of the president who appointed them – what’s the point of having a Court? Did we really establish a system of self-government in which those life-tenured judges decide so much social policy? [19]
There are two other items to discuss: the preposterous theories of “originalism” and “textualism;” and a legal group known by the name of “The Federalist Society.”
Originalism has already been dealt with on this site, but for a refresher, consult Samuel A. Marcosson”s “Original Sin…Clarence Thomas and the Failure of the Constitutional Conservatives” [2002} To be blunt and brief – Marcosson destroys “originalism” by throwing Thomas” and Scalia’s words back at them. The words “making it up” and “false statement” appear; so does “now you see it, now you don’t.” “…originalists have failed on their own terms>’ [13] “Originalism is a jurisprudence of deafness…” [25] Thomas’ judicial opinions and pre-Court political views have a “striking similarity.” [29]
“…Bush v. Gore is simply the latest example of the conservative majority’s inconsistency….also the most important example and the one most devastating to the Court’s legitimacy…..just the latest in a long line of constitutional decisions that are indefensible on the merits and comprehensible only through the prism of the political ideology of the justices. Rather than standing alone as evidence of the politicalization of the Court by its most conservative wing, it is the smoking gun… the one that cinches the case.” [106]
The Federalist Society was created in the early 1980s by three “conservative” partisans [some might say reactionary] on the belief the American Bar Association was “too liberal.” It was financed by a “conservative” billionaire who didn’t like the course America had followed. From modest beginnings it has mushroomed into a major American legal force. The Federalist Society has three announced principles: the state exists to preserve freedom; the separation of constitutional powers is central to our constitution; it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. As always, the devil is in the details. The real life mission of the Federalist Society is to push how American law is interpreted and used to the “right.” [some might say to ‘reactionary’ points].
The Federalist Society is perhaps THE major legal player for “the right.” In Republican administrations, many/most positions of legal nature have been manned by Society member. It is almost a requirement to be a Federalist Society member to obtain a Republican nomination for a judgeship. The society often does all the vetting. With the possible exception of one, all current Republican appointed Supreme court Justices have been Federalist Society members.A high-ranking society member has said the Federalist Society operates as a “check” on the Supreme Court.
The Federalist Society has inserted “Law and Economics” departments in most major U.S. law schools. One in a major university has “helped” by a $44 million donation to the school. Society members operate “training’ sessions for judges. Members also supply much “scholarship” to the legal community. Some has been quoted from the bench by Supreme court justices.
Amanda Hollis-Brusky’s “Ideas With Consequences The Federalist Society and the Conservative Counterrevolution” [2015] has diagrammed out how the Federalist Society works to push test cases up to the Supreme Court. Several major 21st century cases were near-100% Federalist Society operations, start to finish. The “counterrevolution” is changing American law to a much more “conservative,” especially “business-friendly” nature. Their definition of “freedom” is quite likely NOT to be what you think it is!!! Much of their definition of “freedom” is freedom to do whatever they want – free from any and all restraints by any government. This is a major reason why the Federalist society has received so much funding from “conservative” billionaires.
Michael Avery and Danielle McLaughlin’s “The Federalist Society How Conservatives Took Back The Law From Liberals” [2013] is another excellent work on the Society. Dahlia Lithwick, Senior Editor. Slate.com wrote this review: “A compelling intellectual history of the rise of the powerful Federalist Society, this is a thoughtful recounting of all the ways in which the group has impacted and influenced legal doctrine, and a roadmap of what’s to come should their ascendancy continue. Anyone who cares about the courts or the law will find “The Federalist Society” a stark reminder of the power of abstract ideas to effect real and lasting change for decades.”
Like other things, YOU should now have enough info to understand that the state of American law in 2021 is NOT an accident. Like many other crucial aspects of our country, the law has been deliberately changed and decisively pushed to the right, 1980-2021. Like the economy, this has not benefitted all Americans. Like the economy, it was intended to.
SO – at the beginning, your challenge was this: what would a “reasonable” person conclude? Has the forcibly changed American legal system met the test of principles: “all men are created equal,” and the government’s job is to “promote the general Welfare?” Hint: the goal of the “right” is that it wouldn’t. AND – another challenge for you: what has been the overall PATTERN? You should be able to figure out the winners and losers, right????? The use of the word “sabotage” was not an accident – because that’s what the PATTERN of evidence leads to, unfortunately.
With Justice For All 