How the Supreme Court Contributed to Growing Inequality

Two new histories show how the egalitarian advances under Earl Warren were reversed.

BY MARK JOSEPH STERN JANUARY 29, 2020

President Donald Trump appears eager to accelerate the cycle of inequality. His judicial nominees are, if anything, more reactionary than Nixon’s, hungry to tighten the richest Americans’ stranglehold on democracy while permitting the oppression of women, minorities, and poor people.

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

By Adam Cohen

Penguin

Democracy and Equality: The Enduring Constitutional Vision of the Warren Court

By Geoffrey R. Stone and David A. Strauss

Oxford University Press

From 1953 to 1969, the Supreme Court undertook a sustained assault on America’s racial apartheid, dismantling Jim Crow and transforming the federal judiciary into a bulwark of individual liberty. Then Richard Nixon assumed the presidency—and the Court’s crusade screeched to a halt. Chief Justice Earl Warren, who led the Court’s “rights revolution,” stepped down, followed by three more justices, allowing Nixon to reshape the Court into a body that not only tolerated oppression but actively thwarted democracy. The Supreme Court is best known for its expansion of personal freedom in cases like Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges. But these highlights can obscure the Court’s role as a dangerously reactionary institution in the half-century since Warren retired.

As Adam Cohen shows in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, the beginning of this retreat from Warren’s grand vision can be largely attributed to Nixon himself. In 1968, Nixon ran as a law-and-order candidate, criticizing the Warren Court’s criminal justice decisions, which dramatically expanded the rights of the accused. When he took office, Nixon wasn’t content to replace Warren, who announced his plans to retire before the election. He also wanted to take down Justice Abe Fortas, a liberal Lyndon B. Johnson appointee. Like most justices today, Fortas made money on the side: He taught a summer seminar at American University Law School and provided advice to a civil rights foundation, earning a handsome paycheck for both gigs. There was nothing remotely illegal about Fortas’s work, but Nixon instructed his attorney general, John Mitchell, to investigate Fortas anyway.

https://prospect.org/culture/books/how-the-supreme-court-contributed-to-growing-inequality/