A Supreme Court for the Rich

When Justice Kavanaugh replaced Justice Anthony Kennedy in 2018, he moved a five-member conservative majority even farther to the right, and progressives are rightly concerned that this shift imperils many past victories — from reproductive rights to affirmative action. But on poverty there haven’t been many victories in the first place, as Cohen demonstrates, since the judicial assault on the poor dates back decades.

“Supreme Inequality” begins with the Warren court to show that the court of that time was taking steps to protect the poor. But President Richard Nixon forged a new conservative majority by bluffing Justice Abe Fortas off the court with a smear campaign, causing a shift in the court’s balance that has persisted down to the present day with the Senate’s refusal to give Judge Merrick Garland, Barack Obama’s choice for the court, a hearing. Instead, Justice Neil Gorsuch was confirmed to that seat once Donald Trump became president. Because the numbers on the court are so small, swapping out one justice for another transforms the course of the country. Cohen concludes with the words of the poverty law activist Edward Sparer, who said that a court more sensitized to the needs of the poor “could have led to a different America.”

And this is where the book falters. After energizing the reader, it ends with lamentations rather than reforms. Contemporary proposals to limit the terms of the justices or to expand the number of seats on the court have direct relevance to the problems Cohen describes. But they receive no mention here.

Cohen does better when looking beyond the Supreme Court. He tantalizingly alludes to the role that state courts might play by invoking Justice Thurgood Marshall’s dissent in Rodriguez. As that dissent observed, state courts are permitted to build above the floor set by the federal Supreme Court, and some state constitutions have textual provisions that create more protections for low-income Americans. Yet Cohen gives us only a snapshot of this potential solution.

More deeply, Cohen never delivers a crisp blueprint of what an ideal jurisprudence as it relates to the poor might look like. As he acknowledges, the law offers two avenues for reform. The first takes a group-based approach, viewing the poor as a protected class that must be treated on equal terms with the rich. The second takes a rights-based approach, arguing that the government must protect certain fundamental rights (like the right to counsel in criminal proceedings) even to the point of subsidizing them.

Though Cohen favors these approaches, he does not explain how either would work in practice. If we take the group-based approach, how are “the poor” to be defined, and what would constitute equal treatment? If we take the rights-based approach, how do we determine which rights are so fundamental that they must be supported by the state?

As its title promises, “Supreme Inequality” makes an important contribution to our understanding of both the Supreme Court and the law of poverty. Cohen is an erudite and savvy observer. Yet for precisely that reason, one wishes he had pointed a clearer path to a less impoverished jurisprudence.

The article was originally published by Newyorktimes