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

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. A new book examines the conservative direction the Supreme Court has headed in over the past 50 years, ever since Nixon became president. The author, my guest Adam Cohen, writes, 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. He says, in campaign finance law, the court has opened the floodgates to money from wealthy individuals and corporations. In election law, it's upheld rules and practices that make it more difficult for the poor and racial minorities to vote. In criminal law, it's favored prosecutors so consistently that it's contributed significantly to the nation's mass incarceration crisis. And on a wide variety of issues, the court has ruled against the poor.

Cohen's new book is called "Supreme Inequality." His previous book, "Imbeciles," was about the 1927 Supreme Court decision bound up in the eugenics movement that upheld a state's right to sterilize people deemed unfit to procreate because they were, quote, "mentally deficient." Adam Cohen is a former public interest lawyer who worked with the ACLU and the Southern Poverty Law Center. He served as a member of The New York Times editorial board and as senior writer for Time magazine.

Adam Cohen, welcome back to FRESH AIR. As you point out, your book paints a different picture of the Supreme Court than the one presented in civics class. Compare the two pictures.

ADAM COHEN: Sure. I think, you know, a lot of us were raised to believe that the Supreme Court was the defender of the disadvantaged. We think of cases like Brown v. Board of Education; the Supreme Court integrated the South. There's a little bit of truth to that, but when you look at the large picture of what the Supreme Court has done historically, it's much more negative than that. They have consistently sided with the wealthy and the powerful. And that's a lot of what my book is about - is showing that siding with the wealthy and powerful is a feature of the court, not a bug.

GROSS: You know, we've seen how politicized the Supreme Court has become, with it being pretty predictable what liberals will vote for on the court and what the conservatives will vote for on the court, and the team with the most people on it tends to win. Occasionally, there's swing votes and surprises, but is that a fair characterization in terms of the big decisions?

COHEN: Absolutely. But, you know, it's really important to realize how counter that is to the traditional narrative, right? I mean, we're told that the Supreme Court is in the law business, not the politics business, right? I mean, it's those folks in Congress and in the White House who are political. The justices are supposed to be reading the text of statutes, reading the Constitution, using principles of interpretation and objectively arriving at the facts. But what you said is exactly right. It's amazing how political and, you know, recently 5-4 everything is.

GROSS: Do you think that politicization is baked into the Supreme Court because the justices are appointed by the president and the president often has, you know, political motives?

COHEN: Yeah. There is that element of it, but it's definitely gotten a lot worse. Like, if you go back to the Eisenhower era, Eisenhower appointed Earl Warren, who was the great liberal chief justice, and he appointed William Brennan, who was one of the great liberals of the modern court. And part of the reason was that he didn't really know exactly where Warren would come out, but part of it was, they just weren't as focused as we are now on the exact politics of people. Now when a president is going to make a nomination, the interest groups come out; you know, Trump got a list from the Federalist Society and things like that. It's all very carefully staged, and there's a lot of research, and no one wants to take any chances about, you know, not getting the, quote, "correct" kind of justice.

GROSS: You trace the origins of the current conservative court to 1969, when Nixon became president. He inherited a very liberal court with Chief Justice Earl Warren. So let's start with some of the liberal decisions under Chief Justice Warren.

COHEN: Yeah. Within a year of Earl Warren arriving at the court - he had been the governor of California - the court hands down Brown v. Board of Education 9 to nothing - just an enormous landmark that changed the South entirely. So they do that, and then as the court becomes more liberal, particularly when President Kennedy gets a couple of appointments, they begin to hand down decisions like Gideon v. Wainwright, which said that indigent defendants have the right to have a lawyer appointed; Miranda, the famous Miranda warning that the police can't just start questioning you without telling you of your right to remain silent; a few years later, a very important case striking down the poll tax. So they were really going off in many different directions - criminal justice, voting, welfare rights, defending the rights of those at the bottom of the societal hierarchies.

GROSS: Do you think that the Warren court, the liberal Warren court, was a historic anomaly?

COHEN: Absolutely. You know, if you look at the long sweep of the court, you know, before the Civil War and after the Civil War, they defended racial segregation. You know, Dred Scott - they said that a black man didn't have a right to sue for his freedom. After the Civil War, in Plessy v. Ferguson, they say that laws requiring segregation on railroad cars are constitutional. In the 1920s - my last book was about how the court very actively embraced the eugenics movement.

In the 1930s, when FDR is elected and begins to roll out the New Deal, for several years, the court strikes down the most important New Deal laws, and it's only when FDR really kind of threatens them with a court-packing plan that they give in. So yeah. The Warren court was, you know, a big moment in the court's history but also, in terms of years, a small moment.

GROSS: Chief Justice Warren told President Johnson, LBJ, that he intended to resign, and he wanted to resign soon enough so that Johnson could appoint a new chief justice in the spirit of Earl Warren before Nixon was elected 'cause apparently, Warren thought there was a really good chance that Nixon was going to be elected, and he was right about that. But that backfired. LBJ nominated Justice Abe Fortas to be this - the chief justice, and he didn't win Senate confirmation. What happened?

COHEN: Yeah. It was one of the great fumbles in Supreme Court history and really unexpected in many ways because Johnson had been, you know, the master of the Senate, the famed majority leader who understood better than anyone how to count votes in the Senate. He didn't count them correctly this time. So he appointed his old, old friend Abe Fortas, who was a justice, someone who had actually helped him to win his very first contested election, which he may not actually have won. So they went way back. And that was one of the problems, is that critics in Congress and in the media labeled Fortas a crony of Johnson, so they said he wasn't an appropriate appointment to the court.

But also, at that point towards the end of the Johnson administration, there was some backlash against the Warren court. You got - a lot of Democrats in the Senate were from the South. They didn't like the civil rights revolution. A lot of Republicans in the Senate were saying, well, we're about to have a presidential election; we'd like to keep this seat open in case, you know, a Republican's elected and can fill it. So Johnson just counted the votes wrong, and it was very unfortunate because the time was short. And when Fortas was not confirmed by the Senate, there wasn't enough time to try again, and the seat actually was waiting for Nixon when he came into office.

GROSS: And Nixon appointed Warren Burger to be chief justice. What was Burger's judicial philosophy?

COHEN: Well, Burger had been ingratiating himself to Nixon by saying how much he didn't like the Warren Court and also didn't like the liberals on his court, the D.C. Circuit Court that he was serving on - the appellate court. So he had been making clear to Nixon that he was going to be quite conservative. He had given speeches about how we're too lenient with criminals. And Nixon knew that with Burger, he would get someone who was as committed as he was to sharply changing the direction of the court.

GROSS: Nixon also wanted Abe Fortas out 'cause although Abe Fortas didn't become chief justice, he was still a justice in the Supreme Court. So what did Nixon do to force out Fortas?

COHEN: So Nixon comes in. And he gets that chief justice appointment - very exciting. And there have not been that many chief justices in history, so that's a big deal to be able to appoint one right away. But he's also counting, you know, noses on the Supreme Court. And he needs to get a majority to get a conservative court, and he's looking for any way to do that. He's checking on the medical condition of some of the older justices and frankly hoping that they don't last very long.

But, yes, he sees a weakness with Fortas because Fortas had just been rejected by the Senate, and he's in a politically weak state. And Nixon has his Justice Department investigate Fortas for a relationship he had with a foundation run by an investor who ended up in trouble with the law himself and actually ended up going to jail. It wasn't illegal. There was no court rule against it. It might not have been the wisest thing to do.

But Nixon used that opening and threatens Fortas with prosecution, criminal prosecution, also threatens to prosecute Fortas' wife, who was a lawyer at the firm Fortas had been at, who had been investigated for some other potentially criminal thing that she was cleared of. But Nixon and his cronies were really coming down hard and suggesting to Fortas he and his wife might both end up in jail. They were leaking stuff to the press. And they won. They got Fortas to voluntarily resign, and Nixon got a seat very quickly.

GROSS: Who did Nixon replace Fortas with?

COHEN: Actually, a close friend of Burger's, Harry Blackmun, who we may remember now - towards the end of his life, he was quite liberal. He wrote Roe v. Wade. But for quite a few years in the beginning, he was a conservative who voted with his old childhood friend Warren Burger. And the two of them began the conservative takeover of the court.

GROSS: So by the time Nixon was forced out of office, how had he changed the court?

COHEN: Well, incredibly profoundly because he then got two more appointments, Lewis Powell and William Rehnquist, who was an obscure lawyer in the Justice Department - very right-wing. So he had appointed four justices. He actually did that in his first three years in office. And with the couple of conservatives who were already on the court - some Eisenhower appointees - they - there was a conservative majority. So we had this Warren liberal majority that had been doing all the things we talked about for the disadvantaged, and suddenly, there's a clear conservative majority that wants to undo all that.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Adam Cohen, and he's the author of the new book "Supreme Inequality: The Supreme Court's Fifty-Year Battle For A More Unjust America." We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining 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 write that in the five decades since the Nixon presidency, there have only been three Supreme Court chief justices, and they've all been conservative - Burger, Rehnquist and Roberts.

COHEN: 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 1970, we've had so many changes in the White House, right? We've had conservatives. We've had, you know - we've had Reagan, and we've had George W. Bush, and we've had Clinton, and 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 50 years.

GROSS: So do you think that's kind of coincidence that justices tend to leave or die during Republican presidencies? Or do you think that Republicans are better at getting Supreme Court justices appointed?

COHEN: Well, they 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 a Republican-held Senate. Ruth Bader Ginsburg and Stephen Breyer did not step down towards the end of the Obama administration, so that's one part of it.

But another part of it really is that they just do the skullduggery a little bit better, too, right? So when Obama nominated Merrick Garland, if 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; we're not going to do anything. So, you know, I actually say in the book that these are kind of two bookends on the half-century, that Nixon steals Fortas' seat, and Mitch McConnell refuses to allow a Democrat to fill Scalia's seat. And they both propped up the current conservative majority.

GROSS: There's something about the process of nominating and confirming Supreme Court justices that seems to have changed. You know, you mentioned the - McConnell blocking the Merrick Garland nomination. But, you know, Trump named his potential justices during the campaign. That's kind of unheard of, isn't it?

COHEN: It's gotten much more political. And just the way in which Trump is saying, you know, we're putting together this list, and we're consulting with the Federalist Society - and, you know, I think it's pretty much acknowledged that, you know, Trump, in many ways, was not a very traditional right-wing presidential candidate by background, by temperament and 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 want. And they've been very emphatic about doing that.

GROSS: It used to be there was not supposed to be a litmus test for a Supreme Court justice. But now both Democrats and Republicans seem to be boldly mentioning (laughter) their support of a litmus test. I mean, some Democratic candidates have said that, yeah, they would choose, you know, a Supreme Court justice who supports abortion rights, that that would be essential. So I think that's something that's changed, too - that, you know, intentionally stating to the public, yes, this judge is coming in with, you know, certain points of view in advance.

COHEN: I think that's right. The mask has fallen off, right? And 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 president should be saying is, I'm going to look for the best interpreter of the law. And we'll look for someone who maybe got very good grades or who wrote very good law review articles or who is a fabulous teacher or who has shown just general, you know, excellence in the craft. But that's not what they talk about at all. As you say, they talk about the politics because everyone's pretty much admitting now that the court is a political institution.

GROSS: You write 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.

COHEN: Sure. During the Warren 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 an embarrassment. And people didn't talk about it. And we looked down at the people who were 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 but with the momentum of the Warren Court, in 1970, the Supreme Court did an amazing thing in a case called Goldberg v. 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, a chance to be heard. So that's something that is - you know, it would've 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 justices really begin to take control, the court very quickly turns its back on the poor. And it's actually just a couple of weeks later that the court issues a ruling that really sounded the death knell for the poverty law movement, a case called Dandridge v. Williams, where the court not only said that they were going to uphold a really discriminatory, unfair local welfare rule. But they basically said, you know, we're washing our hands of welfare law cases. You know, it's - this is something we're pretty much going to leave to the government to do as they want. And after that Dandridge case, on and on and 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.

GROSS: Talk about the controversy over whether the Equal Protection Clause of the 14th Amendment should include poor people as a group with special protected status.

COHEN: Yeah. This is one of the most fascinating things that was going on during the Warren era. So there is this notion of suspect class - is there are certain classes that, the court says, have a higher standing under the Equal Protection Clause. So it's mainly, you know, racial minorities, religious minorities, noncitizens, groups like that. And the idea is that if you're a discrete and insular minority that is unable to really effectively protect itself through the political process, which has often been true of the groups I just mentioned, the court will give you extra care. So the court had been for years identifying different groups that it considered to be in this class. And if you get in this class, the court is then much more likely to strike down any law that puts a burden on you or disadvantages you.

And for years, the court was edging close to putting poor people in this category. They would say things like, you know, lines that the government draws against poor people are very similar to lines that they draw against racial groups and, you know, everything but actually calling them 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 Dandridge case, as I mentioned, was to really make clear - no, the poor - not going to be a suspect class, and they're not getting any special attention from us.

GROSS: So if the court had ruled differently and said poor people were a protected class, how might that have changed things?

COHEN: The poor would have then been given a very powerful legal tool to use in a lot of different contexts to challenge a lot of ways in which they're harmed. So right now we have very unequal distribution of welfare around the country, right? There are some states that - if you live in California or New York - not that welfare is munificent because it is not - but there are other states where you get almost nothing, you know, if you're in Wyoming and you need help. So things like that could have been amenable to being challenged under equal protection. Poor people could say, look. We're not being treated equally by the federal government and how it distributes welfare. So there are a lot of categories like that where poverty lawyers would've been able to step up and say, this is a way in which a law is really hurting the poor. And remember, they're a suspect class.

GROSS: My guest is Adam Cohen, author of the new book "Supreme Inequality." After a break, we'll talk about the ways in which he says the Supreme Court has given the advantage to the wealthy. And jazz critic Kevin Whitehead will review a new album by the Carla Bley Trio. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with lawyer and journalist Adam Cohen about his new book "Supreme Inequality." It examines the conservative direction the Supreme Court has headed in over the past 50 years, ever since Nixon became president. He writes that 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. Cohen is a former public interest lawyer who worked with the ACLU and the Southern Poverty Law Center. He served as a member of The New York Times editorial board and a senior writer for Time magazine.

There's another case I'd like you to talk about pertaining to school equality over the question of whether schools in poor neighborhoods should get the same amount of funding as schools in wealthy neighborhoods, and we're talking about public schools. Tell us about that case.

COHEN: Yeah. Rodriguez v. San Antonio Independent School board from 1973, one of the, really, most tragic cases, I think, in the Supreme Court's history. The context of it is that there had been a lot of momentum building around the country saying that when the government provides public schools, it has to provide them equally to all children. And under the Equal Protection Clause, you know, people have a right to be protected equally when the government acts, and this was being widely accepted. Important scholars were stepping forward and saying the Equal Protection Clause does not allow the government to fund schools in wealthy districts very highly and schools in poor districts very low. And courts were beginning to rule this way - lower federal courts, state courts.

So this momentum was building, and everyone kind of assumed that the Supreme Court would, you know, put the cherry on the sundae in this decision and say, yes, this is what the U.S. Constitution requires. By a 5 to 4 vote, the court does the opposite. It says that there is no obligation to treat children in different school districts equally. So it's really - it was a horrible lost opportunity to extend equal opportunity in education and really in life out comes to all American children.

GROSS: Yeah, tell us more about the potential of that decision to have changed the public schools in America.

COHEN: Yeah. I mean, I know this quite well because I was a lawyer in this very area of equal educational opportunity at the - when I was at the ACLU, and I worked on a big case at Alabama about it. It's shocking the degree to which schools vary from one district to another within a state. The Washington Post did a story a few years ago looking at Pennsylvania, and the least well-funded school district in Pennsylvania, which is in coal country, got one-third of the funding of the highest-funded school district in the state per student. So think about that - a 3 to 1 ratio.

And in Alabama, I mean, the things that I saw in the poor districts in the Black Belt, as they call it, around Selma, Ala., Wilcox County - I mean, children, you know, taking naps on wooden floors with fire ants coming through and biting them, you know, in the middle of their nap; textbooks that said, one day man will land on the moon - I mean, terrible, terrible deprivation, when if you go to Mountain Brook, one of the wealthy suburbs of Birmingham, you know, the schools look palatial.

So this is really a pattern across the country, and it really does set up children for very different life outcomes. There's a lot of research on this. If you go to better-funded school, you're more likely to go to a good college, you're more likely to get a good job, not to end up in jail. So the idea that we couldn't just say, no, the government has to give every child the same opportunity in a public government school is, I think, a tragic missed opportunity.

GROSS: So you've given us a couple of examples of how the Supreme Court in the '70s disadvantaged poor people. Give us an example of how the Supreme Court in the past few decades has given the advantage to the wealthy.

COHEN: Well, the one we have to start with, of course, is campaign finance because it's so important. Until 1976, we didn't have this idea that money equaled speech. And in the wake of Watergate, Congress actually passed a really good, strong campaign finance law. The D.C. Circuit Court of Appeals, which is one level below the Supreme Court, upheld the law and said that these are perfectly legitimate limits to put on how much you can spend and how much you can contribute in a campaign. The Supreme Court reversed that and said, no, money is speech; it's a First Amendment violation.

And we've just gone so far down the hill from there, I mean, to Citizens United, where the court said that, actually, corporations have the right to spend unlimited amounts of money. This is so important because money changes everything in government. We know that Congress responds to people who give them money much more than to people who vote for them.

And, you know, one example of that is when they do polls of whether people think the minimum wage should be raised, widespread support across the American public for raising the minimum wage, but the people who contribute money, you know, the retail industry, the, you know, wealthy bosses who employ some of these people don't want it. Well, when was the last time we raised the federal minimum wage? 2009 - because we've allowed money to determine everything, and that's the biggest gift that the court gave to the wealthy.

GROSS: We're in an interesting position now in terms of the Democratic primary in the sense that Michael Bloomberg is both the candidate and the funder of his campaign because he's funding it out of his own money. What does the court have to say about that?

COHEN: They allow that, right? There's no limits allowed on expenditures, so he can spend as much as he wants. But imagine if the court had gone a different way in 1976 in this decision called Buckley v. Valeo, where they said money equals speech and said money doesn't equal speech. You know, that would be like saying that you have a right to amplify your speech when you're on the sidewalks; you can have a sound truck be as loud as you want and wake up all your neighbors all night because you have the right to speak. They could have said, no, you have the right to say the words you want, but you don't have that right to amplify through money. If they had said that, there could have been limits on how much individual candidates spent on their own campaigns.

And think of what a different election we would be having now if Mayor Bloomberg were running as someone who had strict campaign limits on how much he could spend and was roughly spending as much as everyone else; the campaign would be totally different right now. That's something the Supreme Court did for us.

GROSS: While we're on the subject of campaigns, talk about how the court has dealt with voting rights in recent years.

COHEN: Yeah. I mean, it's really been, I would say, a horror. You know, one of the most awful things they did was strike down a key part of the Voting Rights Act. And remember - the Voting Rights Act is a law that was really one of the crown jewels of the civil rights movement, right? Martyrs died fighting and, you know, marching and protesting for the right to vote. We got the Voting Rights Act. It was renewed over and over again by large bipartisan majorities in Congress. The reauthorization were signed by President Reagan and George W. Bush, who said very nice things about it.

This is as close to an all-American law as we have. And the Supreme Court comes along, strikes out the heart of it in a case called Shelby County, and on the most bizarre of legal reasons - you might say, well, they had to do it - right? - because the largest required that, you know, we strike down this unconstitutional statute. But if you look at the reasoning the court used, it's really made up. The court said that the Voting Rights Act as it was constituted denied states their right to equal sovereignty. Well, there really isn't a right to equal sovereignty of the states. And that's not just me saying it; it's not just liberals saying it. Judge Richard Posner, who is a conservative appeals court judge appointed by Ronald Reagan, wrote after the decision, there is no doctrine of equal sovereignty, a principle of constitutional law of which I never heard for the excellent reason that there is no such principle. So this is how the court strikes down one of the most important voting rights laws.

But it's not just the Voting Rights Act. They've upheld very strict voter I.D. laws saying, well, you know, it's not really going to be such a problem. And then, of course, it turns out it's a huge problem, and many people are turned away at the polls because they don't have the very exacting IDs that are required. And on the other hand, when people have come in and said, we'd like you to do something about partisan gerrymandering, where legislatures really draw lines that are so extremely based on party that in many districts now it doesn't really matter who votes or how you vote because the legislature's already decided who's going to win every election, well, the court, for years and years, sort of fumbled around maybe doing something about that and then recently decided they're not going to.

So in all these decisions, the court has sided with the elite election officials, the people who are setting the rules, and they have not sided with the voters. And I just - I can't end this answer without mentioning, of course, Bush v. Gore, which was the absolute extreme of this, where the court had the opportunity to say, of course, we're going to require that every vote be counted. I think the nation looked to the court and thought, we've got this terrible mess going on in Florida in the presidential election; no one really knows for sure who has won and who's going to move into the White House. And people were, I think, expecting the Supreme Court would be the one institution that could step forward and fashion some kind of solution that was clearly not political, that drew on neutral principles of law.

And I think one reason there was so much bitterness afterwards was it seemed very clear that all they did was act politically, and that was because of really the decisions of the five individuals on the court. They could have acted different. They could have acted better. Instead, they stopped the counting of the vote in Florida, and they did it on such made-up legal grounds. The conservatives suddenly embraced this very extreme view of equal protection that they never had before or since. And we know just what a game it was because remember - Bush v. Gore was the decision where the court said, oh, by the way, these rules apply only in this one case. This case is not precedent for anything else. And that's the clearest indication we've gotten from the court that when it comes to voting and rulings about who's going to win elections, for them it's all about power, and it's not about law.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Adam Cohen, author of the new book "Supreme Inequality: The Supreme Court's Fifty-Year Battle For A More Unjust America." We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining 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." And it's about how the Supreme Court became more conservative in the Nixon era and got increasingly so and, in many instances, ruling against the poor, against workers rights, voting rights, while favoring corporations and the wealthy.

You know, your book is about how politicized the court has become, particularly in the past 50 years, since the Nixon administration. And, you know, you can argue, well, of course, the court is politicized because they're all appointees of the president, who's, you know, a political person himself and could have a political agenda in choosing a justice. Are there any ideas on the table for making the court less politicized?

COHEN: There are a number of them. Some of them relate to the size of the court, right? I mean, it's not required that there be nine justices. It could be a larger number. And that might get us out of the current 5-4 deadlock that we have. Although, I think realistically it would be very hard to enact a change in the number of justices. But there's also been talk about mandatory retirement ages. You know, people are living a lot longer than they were when the founders decided that there should be lifetime tenure on the court. So that would be one way to get more of a cycling in and off the court. So those are a couple of suggestions that are out there.

GROSS: Yeah, if a president appoints a young justice, that means that the president's choice is going to be there for perhaps decades.

COHEN: Yes. And we talked about - earlier about the way in which Republicans have maybe been better at gaming the Supreme Court system than Democrats, and one thing is that they have nominated much younger justices. So someone like Clarence Thomas has been there for a very long time and may yet still serve for a very long time.

GROSS: Before you became a journalist and an author, you were a public interest lawyer. You worked with the ACLU. You worked with the Southern Poverty Law Center. You worked in New York and Alabama. What kinds of cases did you take on?

COHEN: When I worked in Alabama at the Southern Poverty Law Center, I did a big jail conditions case. Jails down there were pretty terrible. And I also worked on a case where we were suing the Ku Klux Klan. At the ACLU, I was in a unit that they had set up in the national office working on race and poverty. And one of the big focuses we had was trying to come up with state court solutions for the problem of unequal funding in schools that had been ducked by the Supreme Court in Rodriguez. So Rodriguez said that the federal Constitution does not require states to allocate funds equally across school districts. And we were going in and bringing state court lawsuits that said, well, maybe the state constitution requires that. And some of those have won, and some of those have lost.

GROSS: What's an example of one of your biggest victories or defeats from the period when you were a lawyer?

COHEN: Well, I spent the most time on a school case in Alabama where we were trying to equalize funding between rich and poor school districts. And in particular, we represented parents and school children from the Black Belt, from the very places that the civil rights movement was so active in the '60s - Selma Ala., Dallas County, Lowndes County. And we went to trial, and we put forward just shocking evidence of inequalities of just how good things were in the suburbs of Birmingham and just how terrible they were in the Black Belt in terms of, you know - there was one school where if you took all the classes they had, you couldn't graduate with a degree that would allow you go to the University of Alabama. I mean, it wasn't really a full high school. There were textbooks that, you know, had been written in the '40s and '50s. There were - you know, just an absence of science, you know, that sort of thing, and then things were quite different in the suburbs.

We won a very big victory in the circuit court in Montgomery, and the problem was that the Alabama Supreme Court was very Republican, very conservative, and they ended up reversing it. So it really shows the limits of, you know, how far you can go in some states. And it was really very similar to Rodriguez on a state level, that ultimately you need to get a majority of the Supreme Court to say that you have this right, and a lot of courts are not willing to do that.

GROSS: So when you became a public interest lawyer, did you see the courts as a good way to fight for civil rights for, you know, income equality, for social change, for better education?

COHEN: Yes, all of those things. I grew up in the Warren era, and to me, that was what the Supreme Court did. Both of my parents were lawyers and judges. My grandmother had been a lawyer. And I did think of the law as being a force for social justice, just in the way the Warren Court had laid out. And when I graduated from law school, I did go into public interest law. But the post-Warren courts - the ones that, you know, Nixon created, the ones that I write about in my book - had already very much changed the law.

So, you know, as I mentioned, when I got into education law, you know, Rodriguez had already said that there was no right to equal funding under the federal constitution. Another major case the following year, Milliken v. Bradley, had said that you can't have busing across urban-suburban lines. So that meant that in large cities in the North - like Detroit, where Milliken took place; but also Hartford, where I worked on a case for the ACLU under the state constitution, Connecticut state constitution - all this would have to be done under state constitutions because the Burger and Rehnquist Courts had really put up roadblocks to it.

GROSS: Why did you leave the law?

COHEN: Well, you know, for a number of reasons, but a big part of it was that cases like the Alabama case were not winning, and it seemed that it was not the force for social change that, you know, it had once been. And in many ways, it seemed that telling stories as a journalist and revealing facts that were not known and making arguments - you know, I spent quite a few years on The New York Times editorial board - making arguments might be a more effective way in this era to effect change than to hope for a kind of 1960s-style judge-led rights revolution.

GROSS: So in which place do you feel like you've had the most impact - as a public interest lawyer or as a journalist?

COHEN: Well, you know, if we had won the Alabama case, I would say that alone would have made an enormous difference in so many lives that that might have won. But since we didn't, I don't think that the things I worked on as a public interest lawyer had as much impact, although they had some. And there is a new jail - or it was new when - you know, a few years ago - in Chambers County, Ala., that was a result of a lawsuit we brought, saying that the old jail was inadequate. So you can effectuate change, but, you know, I do think that in some ways some of the journalistic work I've done I think might have had more impact.

GROSS: Adam Cohen, thank you so much for talking with us.

COHEN: Thank you.

GROSS: Adam Cohen is the author of the new book "Supreme Inequality." After we take a short break, jazz critic Kevin Whitehead will review a new album by the Carla Bley Trio. This is FRESH AIR.

(SOUNDBITE OF HANK JONES & FRANK WESS' "A HANKERIN'")

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