From January/February 2019: The irony of modern feminism’s obsession with Ruth Bader Ginsburg

Yet in this age of the judge as celebrity, the decision to focus not on the personalities of the Court but rather on the ideas that fill its opinions has obvious allure. I admire Ruth Bader Ginsburg as much as the next feminist, but I have seen enough movies about her for now. The late Antonin Scalia developed such a cult of personality among Federalist Society members that he felt emboldened to make an obscene gesture to a reporter and did not recuse himself from a case in which his impartiality was in serious question. And most recently, Brett Kavanaugh’s confirmation hearings caused some Court watchers to turn away in disgust. Given individual justices who can sometimes seem too big for their robes, Cohen’s wonky emphasis on cases rather than characters offers a steady perspective. After all, the ideas at stake in Supreme Court decisions are what touch our daily lives.

Cohen takes as his subject the Supreme Court’s trajectory, and its footprint, since Earl Warren’s rights revolution of the 1950s and ’60s. The Court, Cohen suggests, is more influential in shaping national life than many Americans realize. Blockbuster decisions such as Bush v. Gore of course make headlines and attract widespread attention. But Cohen seeks to explore the Court’s place in government in a coherent, structural sense—and the role it plays deeply troubles him:

The Supreme Court is more than a legal tribunal, ruling on disputes between parties—it is also an architect. The Court’s interpretations of the Constitution and other laws become blueprints for the nation, helping to determine what form it will take and how it will continue to rise. For the past half-century, the Court has been drawing up plans for a more economically unequal nation, and that is the America that is now being built.

In our civic imagination, the Supreme Court protects the downtrodden and safeguards fairness. equal justice under law read the words over the Court’s entrance; justice the guardian of liberty proclaims the building’s eastern facade. This is the noble dimension of the Court’s identity, which the justices emphasize to the citizenry. Cohen disdains it as self-congratulatory cant, describing the Warren Court’s egalitarianism as an exception rather than the rule. The modern Court has more frequently protected the interests of wealthy elites than of minorities and the vulnerable. Cohen writes that in the 50 years since Warren Burger replaced Earl Warren, “the Court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of the law.”

As these lines suggest, Supreme Inequality is ambitious in scope. Cohen describes the erosion of individual protections and the amplification of corporate power in areas as diverse as criminal justice, business and employment law, and voting rights. He structures sections of the book as lessons in retrenchment: What the Warren Court hath given, the Burger, Rehnquist, and Roberts Courts hath taken away. For example, Cohen’s chapters on poverty law trace the descent from Warren Court cases such as King v. Smith, which struck down a state rule that allowed authorities to terminate the welfare benefits of a single woman with children if a man regularly stayed with her, to Burger Court opinions such as Dandridge v. Williams, which upheld a Maryland rule that capped welfare payments regardless of the number of children in a family. Similarly, in his section on voting rights, Cohen shows how the Court regressed from the Warren Court’s seminal Baker v. Carr decision, which asserted the Court’s jurisdiction over political redistricting, to the recent Rucho v. Common Cause, which ruled partisan-gerrymandering questions “nonjusticiable” and therefore beyond the justices’ purview. A key factor in the poverty and voting case trends has been raw political power: whether Democrat- or Republican-appointed justices hold the majority.