Adam Serwer: The Supreme Court is heading back to the 19th century

The area in which the Court was boldest was welfare law. For most of the nation’s history, the poor had been scorned, and were expected to be grateful for whatever crumbs society sent their way. Now, the Court was insisting that welfare recipients had an array of enforceable rights. It even issued a major ruling that required states to give welfare recipients a formal hearing before cutting off their benefits.

The Court considered going even further. Throughout the 1960s, while President Lyndon Johnson and Congress were waging a War on Poverty, the Court seemed to be edging toward declaring the poor to be a constitutionally protected class, like racial minorities and other disadvantaged groups. When it struck down the poll tax, for example, the Court declared that “lines drawn on the basis of wealth or property, like those of race … are traditionally disfavored.” If poor people had been designated a protected class, activists would have had a powerful legal tool to unravel many more laws that discriminate against them.

This poverty-rights revolution ended very suddenly, however, in the early 1970s. After Richard Nixon was elected in 1968, he replaced Earl Warren, the liberal chief justice, with Warren Burger, a conservative, and quickly made three more appointments—a total of four conservative justices assigned to the Supreme Court in three years.

The ruling that made clear the Court’s sharply altered approach to the poor was Dandridge v. Williams, in April 1970. The Court, by a 5–4 vote, upheld Maryland’s “maximum grant” rule, which capped a family’s monthly benefits at about $250. The Court rejected a strong claim that the rule denied families with a large number of children equal protection of the law. Worse, the opinion bluntly declared that “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.” Poor people who wanted to challenge the unfairness of welfare programs were once again on their own.

The conservative Court that Nixon created has been durable. Justices have come and gone, but the ideological makeup of the Court has remained the same: a conservative chief justice with a conservative majority behind him.

Over the past half century, the Court’s empathy for the poor has been replaced by hostility. In 1988, in Kadrmas v. Dickinson Public Schools, the Court ruled against the Kadrmases, a family in rural North Dakota living below the poverty level, who were seeking a waiver to a new school-bus fee. Sarita Kadrmas, who was 9 years old, attended school 16 miles away, and the family could not afford the fee to send her by bus. Justice Sandra Day O’Connor, writing for the Court, said tartly that it was “difficult to imagine” how little Sarita could have a right to be transported to school “for free.”