January 13, 2021 Appellate Issues | Winter 2021

Book Review: Supreme Inequality – The Supreme Court’s Fifty-Year Battle for a More Unjust America

By Steve Emmert

At one time or another, we’ve all heard that one of the responsibilities of the Judicial Branch of government is to protect the little guy from oppression by the political branches. The courts are the place where the meek and powerless go to claim due process of law, equal protection of the laws, and the panoply of guarantees enumerated in the Bill of Rights and elsewhere.

Harvard Law graduate and author Adam Cohen doesn’t see it that way. In Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Cohen posits that for half a century, the high Court has undercut individuals’ rights and stacked the deck against society’s little guys.

Cohen’s tale begins in the Warren Court’s tenure. That Court represented the high-water mark or many principles that the political left prizes: school integration, the rights of the accused, even claims to due-process rights to protect government benefits and avoid discrimination.

In 1968, as President Lyndon Johnson’s tenure drew near an end, the Court’s literal and philosophical leader, Chief Justice Earl Warren, decided to retire. He spoke with Johnson and urged him to settle on a liberal replacement. Johnson agreed and nominated Associated Justice Abe Fortas to move to the center seat.

In Cohen’s view, if that nomination had succeeded, a huge swath of American legal history would be vastly different than it is today. But Republicans in the Senate saw the opportunity to shift the Court’s balance if Richard Nixon won the 1968 Presidential election. The result, as Cohen describes it, was a smear campaign against Fortas, bringing unfair accusations to paint Fortas as a toxic nominee.

Eventually Fortas surrendered to a Republican filibuster and consented to Johnson’s withdrawal of the nomination. “Nixon was quietly delighted by the outcome,” Cohen reports. “He ‘wanted the Fortas nomination killed,’ Patrick Buchanan later recalled, but he ‘did not want our fingerprints on the murder weapon.’”

The result was dramatic. Instead of a liberal (Fortas) to lead the Court and an added liberal in the associate justice slot, Nixon got to name Warren’s successor, the conservative Warren Burger.  Nixon was able to appoint four justices, all conservatives, in his first three years in the Oval Office. These replacements transformed the Court into a bastion of conservatism.

Most of Supreme Inequality is an exploration of the Supreme Court’s rightward shift in the ensuing five decades on issues such as the rights of the poor, educational inequality, electoral dynamics, and the rights of the accused. While the post-1969 Court has issued some rulings that conservatives scorn – from Roe v. Wade in 1973 to Obergefell v. Hodges in 2015 – the book recounts a series of conservative decisions that have undone many of the Warren Court’s landmark pronouncements. For example, while the Warren Court handed arrestees a major victory in the form of a nationwide exclusionary rule in Mapp v. Ohio in 1961, the Burger Court chipped away at that holding in a string of rulings that created a good-faith exception to the rule.

The Warren Court also undercut the foundational holding of 1954’s Brown v. Board of Education by refusing, in Rodriguez v. Texas Indep. School Dist. (1973), to recognize that a grossly underfunded school system was just as “unequal” as one segregated by race. Cohen concludes that the Supreme Court is by no means a shelter for America’s downtrodden; it instead facilitates oppression by the Goliaths among us.

The book’s subtext is the importance of major philosophical shifts when one justice replaces another. The two biggest shifts in the five decades before Cohen’s writing were Burger for Warren and Clarence Thomas for Thurgood Marshall. Both times, a strong conservative replaced a leading liberal voice. These personnel changes matter far more than the more common swap of one conservative for another, or a liberal for a liberal.

Since this book’s publication date in early 2020, we’ve seen a third momentous shift in judicial philosophy, when Amy Coney Barrett replaced Ruth Bader Ginsburg just before the presidential election. Here again, a strong liberal voice leaves the Court and is replaced by a reliable conservative vote. The book cannot give us Cohen’s take on that change, but it’s easy to fathom what it might be.  While the national mood may waver as situations change, the Court has steered an ever more rightward path.

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Steve Emmert

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Steve Emmert is a partner at the Virginia Beach firm Sykes, Bourdon, Ahern & Levy, where he focuses exclusively on appellate practice, primarily in the Supreme Court of Virginia. He is a Phi Beta Kappa graduate of Richmond College and received his law degree from the University of Virginia. He founded the Virginia Bar Association’s Appellate Practice Section, and currently serves on the CAL Executive Board. In November 2020 he was inducted into the Virginia Lawyers Hall of Fame. He is married to former operatic contralto Sondra Gelb; they have one slightly spoiled daughter, Caroline.