ADAM COHEN’S ‘SUPREME INEQUALITY’ WRANGLES COMPLEX LEGAL HISTORY BOOKS,
How 50 years of rulings turned SCOTUS into the court of the 1%
Iam confident that the average American citizen could draft a competent entertaining legal thriller. They’d have no trouble writing realistic if cliched courtroom jargon — Exhibit A, cross-examination, that sort of thing. Having read “To Kill a Mockingbird” or, more likely, having watched “JFK” or “A Few Good Men” at some point this century, they would know that their narrative needs to build to a climactic courtroom crescendo, say, 80% to 85% of the way through the story.
The average American probably couldn’t write any sort of competent fiction or nonfiction about the Supreme Court, which is a far more challenging narrative animal. There are countless legal and political implications weighing on each case. Like a convoluted Marvel movie plot, there are nine justices in the mix instead of your tidy judge, plaintiff and defense troika. By its sheer construction, the Supreme Court is resistant to simple narratives.
This resistance is what Adam Cohen has to overcome in his new book, “Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.” There’s no shortage of important cases he has to cover from the past half-century. There’s no shortage of justices, either, a majority of whom are introduced in “Supreme
Inequality” via crucial backstories, which are both necessary to the book’s arguments and detrimental to its pace.
These are not criticisms. They are the realities a writer encounters when constructing a 50-year history of a complex institution. The reason that “Supreme Inequality” works — and the reason its arguments should replace our oft-recycled legal narratives and representations — is due to Mr. Cohen’s relentless focus on how “for five decades, the court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of the law.”
If that claim seems grandiose, rest assured that Mr. Cohen comes bearing receipts. He’s well-versed in how the nitty gritty affects the legal ecosystem: “Footnote 4 marked a major new path for American constitutional law.”
Mr. Cohen is also infuriatingly good at revisiting poorly written majority opinions. When recounting San Antonio Independent School District v. Rodriguez (1973), Mr. Cohen focuses on the majority opinion from Justice Lewis F. Powell Jr., who noted that in matters of education, what was needed wasn’t judicial intervention but rather “innovative thinking … to assure both a higher level of quality and greater uniformity of opportunity.”
If Mr. Cohen was petty like me, he would note that the incredibly generic “innovative thinking” line is what every teacher has heard their entire career, i.e. “we need to do more with less.” If Mr. Cohen was petty, he would note that the lawsuit itself was the exact type of “innovative thinking” that, if it had been upheld, would have practically ushered in “a revolution in American education” regarding the funding of schools in low-income areas.
But Mr. Cohen is not looking to score cheap and easy points against former justices. He’s hell-bent on revealing a pattern. He seizes on Justice Powell’s line about “innovative thinking” because it proves the crux of his argument. Repeatedly in his book, Mr. Cohen notes that for 50 years, the court has asked the poor and middle classes to be more innovative when it comes to solving the country’s inequality crisis. Yet while the “court denied the poor and the middle class rights to which they were entitled, it invented new ones for wealthy individuals and corporations.”
His work benefits from its reliance on contemporaneous newspaper op-eds and law reviews. Mr. Cohen stitches them together to reveal a wide and at times even bipartisan group of observers who are baffled by the Supreme Court’s decisions. A prominent conservative judge notes that a recent decision “rests on air.” Labor law experts insist that an “opinion misread” key regulations.
It’s telling that I am unable to provide brief descriptive context for these cases and comments. Would I love to highlight several cases from the “education” chapter, the “worker” chapter and the “campaign finance” chapter? Absolutely.
But Supreme Court cases are highly if not hyper-contextual. They require some writerly runway. The decisions are deeply influenced by history and by politics. They become political history themselves. It’s why a tour guide such as Mr. Cohen is invaluable. He understands both the “what” and the “why” of the court’s past 50 years. Whereas the average citizen might feel that the Supreme Court “ensures fairness for all,” Mr. Cohen’s book demonstrates how it has become a “court of the 1 percent, not the 99 percent.”
“SUPREME INEQUALITY: THE SUPREME COURT’S FIFTY-YEAR BATTLE FOR A MORE UNJUST AMERICA” By Adam Cohen Penguin Press ($40)