Supreme Inequality: Achieving Progressive Government through Unelected Judges

COMMENTARY Courts

Supreme Inequality: Achieving Progressive Government through Unelected Judges

Jan 18th, 2021 13 min read

Commentary By

Zack Smith

Legal Fellow, Meese Center

GianCarlo Canaparo

Legal Fellow, Meese Center

As Justice Scalia said, it’s possible for a law to be stupid, but constitutional.  Ryan McGinnis/Getty Images

Key Takeaways

The Supreme Court—and all federal courts—simply review laws to ensure compliance with the Constitution—not to override them based on their own policy preferences.

Many of Cohen’s gripes are, in fact, with the Congress and the president—not the Court.

Thankfully, Supreme Court Justices have in many areas declined his invitation to a judicially-created revolution. And we must do the same. 

When Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America hit bookstore shelves on Feb. 25, 2020, it largely landed with a thud. It put forward a simplistic—yet unstated—view of the Court as a political entity. To Adam Cohen, who formerly worked for the New York TimesTime Magazine, Andrew Cuomo, and Bill DeBlasio, the Supreme Court is “good” when it delivers policy outcomes he agrees with and “bad” when it does not. The result is a book that cherry-picks cases to make its arguments. Ultimately, it amounts to little more than a long complaint that the Court hasn’t delivered the policy outcomes that Cohen wants.

Other reviewers have cataloged the book’s shortcomings, both stylistically (noting that Cohen “does not pander to readers or mug for their attention”—that’s code for boring) and substantively (noting its subpar legal analysis due to Cohen’s preference for “not the Constitution’s original meaning but progressives activists’ modern agenda”).

We are commenting now because Cohen’s simplistic view of the Supreme Court has gained greater traction in recent months, especially in the areas of voting rights and criminal justice. Indeed, several other authors, including a sitting federal judge, have piggy-backed on his work to reiterate the same argument: The Supreme Court should deliver progressive policy outcomes rather than concern itself with correctly interpreting the law.

In many ways, the book seems to have anticipated major events that followed its publication: disquiet and discontent in cities across America as many protested—and some unfortunately rioted and looted—in the aftermath of George Floyd’s death in Minneapolis; a renewed focus on perceived inequalities and inequities in our criminal justice system; a closely contested presidential election with ad hoc election procedures put in place and allegations of voter fraud and voter disenfranchisement made both before and after ballots were cast. And, of course, there was the passing of Ruth Bader Ginsburg and the subsequent nomination and confirmation of Amy Coney Barrett to replace her.

We suspect that Cohen would say this last development only confirmed the central theme of his book that “[f]or five decades the Court has, with striking regularity, sided with the rich and powerful against the poor and weak in virtually every area of law.” Never mind that, by Cohen’s own admission, that isn’t true in many key areas. “The post-1969 Court has not been conservative in all areas, and in some it has made the law more progressive,” he notes correctly. Think abortion and same-sex marriage. Equally important, despite his implications to the contrary, he also admits that “The justices have also not always divided on ideological lines.”

The Supreme Court is Not a Super Legislature

It’s clear that Cohen wants the Court to act as a super-legislature, imposing his preferred policy views on the country through the votes of the majority of the Court’s nine unelected, life-tenured members. To this end, he views the Warren Court as the gold standard for what the Supreme Court should be and how the Justices should view their jobs. The Oct. 5, 1953, swearing-in of Earl Warren as chief justice “launched a progressive legal revolution,” Cohen observes. He celebrates the progressive policy outcomes the Warren Court delivered—especially when the Court imposed progressive policies that the democratic process would not. But, Cohen laments, “the Warren Court turned out to be a historical outlier. When it ended, the Court resumed its traditional role in national life: protector of the rich and powerful.”

Cohen’s complaints take the same pattern throughout the book. Each chapter starts with a premise such as the Court “turned against the poor.” After introducing a policy such as campaign finance reform, lax voting laws, or lax bail laws that Cohen believes is good, he then summarizes the Supreme Court’s opinions that either cut back on those policies or failed to impose them on the political branches. Often, he then argues that the policies are beneficial from a pure policy perspective, which is debatable, and often uses post-hoc rationalizations and data gathered after the Supreme Court decided the cases to make his arguments. Finally, he concludes each chapter by lamenting that the Court missed an opportunity to deliver the policy he endorses.

To summarize, all of Cohen’s arguments follow this basic formula: I like this policy; the elected branches of government did not give me the policy, so the Court should impose it on the country. Missing from this analysis is any discussion of the Constitution, its constraints, or the proper role of unelected, unaccountable, life-tenured judges in a republican democracy.

Although Cohen says that the Supreme Court after Warren “turned against the poor,” he never stops to consider that perhaps the Court was actually turning toward something else: a view of its own role that hews more closely to the text of the Constitution, a role where it decides “cases and controversies” rather than a role where it champions a specific class of people or seeks only its preferred policy outcomes.

Many of Cohen’s gripes are, in fact, with the Congress and the president—not the Court. As then-Judge Brett Kavanaugh said in the 2018 Joseph Story Lecture at The Heritage Foundation “‘Who decides?’ is the basic separation of powers question at the core of so many legal disputes.” He went on to say:

The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of cases would not often vary based solely on the backgrounds, political affiliations, or policy views of judges. This is the rule of law as the law of rules; the judge as umpire; the judge who is not free to roam in the constitutional or statutory forest as he or she sees fit.

These are sentiments echoed by other recent appointees like Justices Neil Gorsuch and Amy Coney Barrett, and before them by Justices like Antonin Scalia and Clarence Thomas. And really, they’re sentiments that are, and should be, echoed by freedom-loving people across the United States.

The Supreme Court—and all federal courts—simply review laws to ensure compliance with the Constitution—not to override them based on their own policy preferences or to substitute their judgment for that of Congress and the president. As Justice Scalia said, it’s possible for a law to be stupid, but constitutional. 

Wealth-Based Distinctions Are Not Subject to Heightened Scrutiny, But What Does That Even Mean? 

Part of this “who decides” issue can be seen through the way in which federal courts review laws and other governmental actions. If a fundamental right, or a suspect classification, is not implicated, the law receives a relatively relaxed rationale basis review. So long as the government has a legitimate interest and there is a rational basis between the government’s action and the goals it seeks to achieve or the problems it seeks to solve, federal courts will typically uphold it and not find a constitutional violation. 

Compare that with the far more stringent “strict scrutiny test,” which the Court applies whenever a fundamental right or a suspect classification is at issue. Here, in order for the law or action to survive review, the government must have a compelling (rather than merely legitimate) governmental interest and the law or action must be narrowly tailored to achieve that interest. One law professor famously quipped that strict scrutiny is “strict in theory and fatal in fact.” Others have said that, in certain areas, it’s strict in theory but feeble in fact. Regardless, it’s clear that strict scrutiny is a much, much tougher standard than rationale basis review. 

Then, there’s intermediate scrutiny. It’s a standard of review higher than rationale basis, yet a lower than strict scrutiny. Here, the Court will look to see if the government has an important interest (not a legitimate one and not a compelling one) and whether the law or action is substantially related to that important interest. The Court typically applies intermediate scrutiny in cases involving unequal gender treatment and or unequal treatment based on birth status (for example, treating children born out of wedlock less favorably than children born to married parents). 

While it’s not always clear what level of review Cohen wants the Court to apply when it reviews laws or actions that impact “poor people”—or however Cohen would define “poor people”—it’s clear that Cohen is upset because the Supreme Court (including the Warren Court) has declined to say that the poor are a suspect class and that any legislation that makes wealth-based distinctions (or potentially has wealth-based disparate impacts) is entitled to some form of heightened scrutiny across the board.  

For example, Cohen repeatedly laments that the Supreme Court has not interpreted the Equal Protection Clause (“No State shall...deny to any person within its jurisdiction the equal protection of the laws”) as granting special protections to poor people. Quoting Professor Edward Sparer, nicknamed “the father of welfare law,” Cohen says that if the Court had been willing to aggressively use the Equal Protection Clause to strike down laws that had negative impacts on the poor “it could have led to a different America.” Sure, but does the Equal Protection Clause on its face or according to its historical meaning afford the poor special treatment under the law? If not, does the Court have the power to rewrite it to give it that effect? And if it does, where does that power come from? The answer to all of these questions is surely no, and Cohen does not answer these questions because he cannot without explicitly revealing his true view of the Court as a political entity.  

For example, in the context of education, Cohen focuses on the case of San Antonio Independent School District v. Rodriguez (1973). In that case, parents sued Texas arguing that funding its public schools through property taxes was wealth-based discrimination and that the poor were therefore deprived of equal protection. Relevant to Cohen’s discussion of that case, the Court held that the poor were not a “suspect class” such that laws that impact the poor deserve heightened judicial scrutiny. Cohen laments the Court’s holding and notes that it prevented the Courts from imposing a variety of policies such as busing and affirmative action on public schools. Do these policies actually work? Cohen does not say, but notes that busing became popular later.  

Perhaps unsurprisingly Cohen does not advance an argument in favor of busing, but nevertheless, he assumes that it was a good policy. The same goes for affirmative action. Cohen does not advance an argument in favor of that policy but merely assumes that it is good. What does Cohen say to the enormous body of research concluding that affirmative action does not deliver the outcomes he desires? Nothing at all, and more importantly, he says nothing at all about why the Supreme Court, rather than Congress and the president, should make those determinations.  

More to the point, think of how ironic it would be to treat poverty as a “suspect classification” similar to race, nationality, or gender. Traditionally, the Court has reserved its highest levels of review for laws that differentiate based on an immutable characteristic such as those. In fact, most individuals undoubtedly hope to lift themselves and their families out of poverty in an effort to achieve the American Dream.  

A Renewed Push to Give Special Status in Voting Rights Cases, Especially Those at the Intersection of Criminal Justice Reform Measures 

But the potential for wealth-based status to receive special protection and some form of heightened scrutiny received renewed attention this last election cycle, at an interesting intersection of voting rights and our criminal justice system. In 2018, Florida voters passed Amendment 4, a ballot initiative that restored “the voting rights of Floridians with felony convictions after they [had] completed all terms of their sentence including parole or probation.” Certain exceptions for murder and sexual offenses applied.

The Florida Legislature passed enabling legislation the following year clarifying that “all terms of their sentence,” included fines, fees, costs, and restitution imposed as part of the criminal sentence.  

The inevitable lawsuits followed.

One of the major issues (though there were many) throughout the litigation revolved around the appropriate level of scrutiny that the courts should apply. The district court applied heightened scrutiny at both the preliminary injunction and merits stages of the litigation. And a three-judge panel of the Eleventh Circuit Court of Appeals also applied “some form of heightened scrutiny” to uphold the district court’s grant of the Preliminary Injunction, prohibiting Florida from enforcing their law.  

The entire Eleventh Circuit, sitting en banc to review the district court’s merits determination, made clear, however, that rationale basis review must apply. In an opinion authored by Chief Judge William Pryor, the Court said that in this case, the “only classification at issue is between felons who have completed all terms of their sentences, including financial terms, and those who have not. This classification does not turn on membership in a suspect class: the requirement that felons complete their sentences applies regardless of race, religion, or national origin.” Thus, rationale basis review was appropriate. And the Court found that the law passed that deferential review. 

In a thorough concurrence adding additional explanation about why rationale basis review was appropriate, Judge Barbara Logoa said it is:

well settled: indigency is not a suspect class. Nor could it be. As Justice Harlan noted, “[e]very financial exaction which the State imposes on a uniform basis is more easily satisfied by the well-to-do than the by the indigent.” Douglas v. California, 372 U.S. 353, 361 (1963) (Harlan, J. dissenting); accord Lewis v. Casey, 518 U.S. 343, 376 (1996) (Thomas, J. concurring). Under any view that indigency was a suspect class under the Fourteenth Amendment, “regulatory measures always considered to be constitutionally valid, such as sales taxes, state university tuition, and criminal penalties, would have to be struck down.” Lewis, 518 U.S. at 376 (Thomas, J. concurring) (citing Douglas, 372 U.S. at 361-62 (Harlan, J., dissenting)).  

That’s certainly jarring to hear. 

Conclusion

Unfortunately for Cohen’s readers, while he rages against statements such as these, he really doesn’t offer any substantive counterargument—if indeed there is any that can be offered. Because of this, Cohen’s book is of little use to any audience. Conservatives will likely disagree with many, if not most, of his positions, but because he fails to engage in substantive arguments, they’re likely to be unpersuaded. And because he provides no practical advice (after all, you can’t lobby unelected judges) to progressives who might dislike these decisions, they’re unlikely to find the book worthwhile either. 

And while Cohen does a good job of walking readers through many landmark Supreme Court cases of the last fifty years or so—albeit it with a heavy partisan gloss on them—intellectuals and academics who study law and the courts in greater detail than the average person will simply conclude that Cohen’s shallow analysis isn’t meant for them. 

So really, the only reason to read Adam Cohen’s Supreme Inequality is if you have ever wondered what it would be like to be a revolutionary. Make no mistake, that’s exactly what Cohen proposes in his book. Rather than our current method of democratically electing representatives who pass laws that must be approved by an elected president, he prefers rule by a junta of nine robed, unelected, life-tenured lawyers promoting (only) his preferred “egalitarian” policy preferences.  

Thankfully, Supreme Court Justices have in many areas declined his invitation to a judicially-created revolution. And we must do the same. 

This piece originally appeared in the National Interest https://nationalinterest.org/blog/buzz/supreme-inequality-achieving-progressive-government-through-unelected-judges-176601