'Supreme Inequality' Argues That America's Top Court Has Become Right-Wing

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Us my guest is Adam Cohen he's a lawyer and a journalist and author of the new book supreme inequality the supreme court's fifty year battle for a more unjust America it's about how the Supreme Court has grown more conservative often ruling against the poor against workers rights against voting rights while favoring corporations and the wealthy overall contributing to income inequality you read that in the five decades since the Nixon presidency there've only been three Supreme Court chief justices and they've all been conservative burger Rehnquist and Roberts yes and they've had a conservative majority behind them the whole time and that's really stunning right because if you think about going back to nineteen seventy we've had so many changes in the White House right we've had conservatives we've had you know we've had Reagan we've had George W. bush and we've had Clinton we've had Obama Congress has switched parties multiple times right back and forth back and forth we have just had a right wing court for sixty years so do you think that's kind of coincidence that justices tend to to leave or die during Republican presidencies or it do you think that Republicans are better at getting Supreme Court justices appointed well the game the whole system much better than Democrats do in many ways so one way is that they do tend to step down in strategic ways that Democrats often don't so Anthony Kennedy stepped down at a time when he knew that trump would be able to replace him and get his nominee confirmed by Republican held Senate with Peter Ginsburg and Stephen Breyer did not step down towards the end of the Obama administration's that's one part of it but another part of it really is that they just do the skulduggery a little bit better to write so when Obama nominated Merrick garland it's garland had been confirmed that would have restored a liberal majority to the court for the first time in half a century and look what the Republican Senate did they just said we're not interested what I can do anything so you're actually say in the book that these are kind of two book ends on the the half century that Nixon steals for this is C. and Mitch McConnell refuses to allow a Democrat to fill Scalia's seat and the both propped up the current conservative majority there's something about the process of nominating and confirming Supreme Court justices that seems to have changed now you mention the McConnell blocking the Merrick garland nomination but you know trump named his potential justices during the campaign that that's kind of unheard of isn't it's gotten much more political and just the way in which trump is saying you know I we were putting together this list and we're consulting with the federal society and and I think it's pretty much acknowledged that you know trump in many ways was not very traditional right wing presidential candidate by background by temperament to many other things one thing he clearly did to solidify his support from the right wing from fundamentalist Christians and all that was to make it clear to them we're going to choose the kind of justices you walked and they've been very emphatic about doing that it used to be the was not supposed to be a litmus test for Supreme Court justice but now both Democrats and Republicans seem to be boldly mentioning their support of a litmus test I mean some democratic candidates have said that yeah they would choose you know Supreme Court justice who supports abortion rights at that would be essential so I think that's something that's changed too with that you know intentionally stating to the public yes this this judge is coming in with you know certain points of view in advance I think that's right the mask is falling off right everyone can see what's really going on you know in theory if the court is the sort of legal body we like to pretend it is what present should be saying is I'm gonna look for the best interpreter of the law I will look for someone who maybe got very good grades or road very good lord you articles or who is a fabulous teacher or who has shown just a general you know excellence in the craft but that's not what they talk about it all is as you say they talk about the politics because everyone's pretty much admitting now that the court is a political institution you read that the area in which the Supreme Court has changed the most is in the area of economic class give us an example of that sure during the war in court which we were talking about the court really embraced poor people and their problems so we began to see them being very active around issues like the poll tax but also really about welfare right I mean welfare used to be something that was kind of disparaged and embarrassment people didn't talk about it we looked out the people who are on welfare well the Warren court comes along and says no welfare is an important thing in our society that allows people to subsist and the and actually right after the Warren court ended with the momentum of the Warren court in nineteen seventy the Supreme Court did an amazing thing in a case called October versus Kelly they actually ruled that under the due process clause localities cannot remove people from the welfare rolls without giving them a formal hearing first chance to be heard so that's that's something that is you know it would have been unheard of a decade earlier so that was the kind of new approach the court took to the poor but then when the burger court rises and when the Nixon justice is really begin to take control the quick very quickly turned his back on the poor and and it's actually just a couple weeks later that the court issues a ruling that really sounded the death knell for the poverty law movement case called energy Williams where the court not only said that they were going to uphold really discriminatory unfair local welfare rule but he basically said you know we're washing our hands of welfare law cases where it's you know it's the this is something we're pretty much going to leave to the government to do as they want and after that Dandridge case although not in on the court began to rule against the poor and to make clear that they didn't care about things like whether welfare was fair by the controversy over whether the equal protection clause of the Fourteenth Amendment should include poor people as a group with special protected status yeah this is one of the most fascinating things that was going on during the war in Europe so there is this notion of a suspect class is there certain classes that the court says I have a higher standing under the equal protection clause so it it's mainly you know racial minorities religious minorities non citizens groups like that and the idea is that if you're a discreet and insular minority that is unable to really effectively protect itself through the political process which is often true of the groups I just mentioned the court will give you extra care so the court had been for years identifying different groups it considered to be in this class and if you get in this class the court is that much more likely to strike down any laws that puts a burden on your disadvantages you and for years the court was edging close to putting poor people in this category they would say things like you know what lines with the government draws against poor people are very similar to lines of the drive against racial groups and you know everything but actually calling the suspect class and we don't know what the Warren court would have done if it had been allowed to continue but one of the first things the burger court did in that dentures case as I mentioned was really make clear no the poor not could be a suspect class and they're not getting any special attention from us so if the court had ruled differently and said poor people were a protected class how might that have changed things the poor would then be given a very powerful legal tool to use in a lot of different context to challenge a lot of ways in which their heartbeat so right now we have very unequal distribution of of welfare around the country there are some states that if you live in California New York not that welfare is munificent because it is not but with the other states where you get almost nothing you know if you're if you're in Wyoming and you need help so things like that could have been amenable to being challenged by under equal protection for people to say look we're not being treated equally by the federal government how it distributes well for so there are a lot of categories like that we're we're populars would've been able to step up and say this is a way in which a law is really hurting the poor and remember there are a suspect class my guess is Adam Cohen author of the new books of freedom and

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