- Good evening, welcome to
this "Brennan Center" event
at NYU School of Law.
The Brennan Center for
Justice, as you know,
is a nonpartisan law and policy Institute
affiliated with the law school
and we are very grateful,
not only for NYU support tonight,
but also to the support of
the NYU law student chapter
of the American Constitution Society,
which is our partner
for this event tonight.
So thank you.
My name is Melissa Murray.
I am the Frederick I and
grace Stokes professor of law
here at NYU and I am also on the board
of the Brennan Center, and I
am especially delighted tonight
to be your moderator for
this event with Adam Cohen.
Adam is a deeply gifted
thinker and lawyer.
His research and careful analysis
about the issues in the law
make him a superb journalist.
And he has been not only a journalist
but an author of many books,
a senior writer for Time magazine
and a co editor of the
National Book Review,
as well as serving on the New
York Times editorial board.
In addition to the book
we'll talk about tonight,
he's written a number of fantastic books,
one about "The New Deal",
"Freedom from Fear"
and also about the long
history of sterilization
and reproductive injustice
in the United States,
a book called "Imbeciles"
about Carrie Buck.
Tonight's book, however,
is called "Supreme Inequality:
"The Supreme Court's Fifty-Year Battle
"For A More Unjust America"
And in the book, Adam
examines the conservative tilt
of the Supreme Court since
the Nixon administration
and forward through the last 50 years.
The Supreme Court,
after justice Earl Warren
no longer protected
the rights of the poor and
the disadvantaged equally
and instead, move forward
to deprioritize such issues
as school desegregation, voting rights
and the protection of workers
and instead prioritize
decisions that favored wealthy
and corporate interests.
This judicial history, Adam contends,
has led to the economic inequalities
that have radically changed this country
and indeed has informed the
nature of our politics today.
Before we launch into the discussion,
Adam's going to give us a
quick primer of the book
and how all of this happened.
And then we'll unpack
it all in conversation.
So Adam, I will let you take it away
with this multimedia presentation.
(audience clapping)
- Thank you so much, Professor Murray.
It's really a thrill to be
here with you in particular.
Yes, I'm gonna try to do
just a very quick slideshow
to give you an idea about the book.
And then we'll have, I think, more fun.
Professor Murray and I
will have a conversation
and then most fun when we throw it up
to questions from you all.
So I don't know if you you saw this,
but this is a little clip
from CBS Morning News.
It went viral on Twitter a few weeks ago.
And what they did is they
went to a shopping mall.
And they just asked random
people in the shopping mall,
they put out these plates,
five plates that represented
five different segments of
the American population,
the top 20% by wealth,
the second 20%, the third,
the fourth, and then the
poorest 20% by wealth.
And they asked people in the mall
how many pieces of pie they
should put on each plate
in order to accurately convey
the wealth distribution in the country.
They had 10 pieces of pie,
and of course, people were wildly off,
they were sort of embarrassed to say,
"Well, I think maybe you should
put maybe four pieces of pie
"on the on the first plate,"
and then the reporter would say them,
"No, actually, nine of the
10 belong on the first plate.
"The 10th piece of pie,
"you need to split between
the next two plates.
"80% of it for the second
plate, 20% for the third,
"the fourth plate, which is the
fourth 20% of the population
"gets zero slices of pie,
"and then the bottom 20%
"of the American population
by wealth gets a bill
"because they actually
have no wealth at all."
So, what was really interesting
about that was two things.
One is we saw just how extreme inequality
is in the United States.
But the other thing that
was really illuminating
was that people didn't
know how bad it was, right?
I mean, people had no idea
that nine of the 10 slices
belonged on that first plate.
So, that I think is part of our problem
is not that we're just an
increasingly unequal society,
but people don't realize how bad it is.
So why economic inequality?
We hear a lot of talk about
it, we read in the press,
people talk about
well, globalization is
making us more unequal,
automation, policies from
Congress and the President.
In the book, I say,
one thing that we're
not talking about enough
is the extreme role that the Supreme Court
has played in this inequality.
It just doesn't come
up in the conversation,
but I think it's a major driver.
And when we talk about the Supreme Court
being a driver of inequality,
we need to go back to 1969.
And that's why the book
is the last 50 years of the Supreme Court.
Something very dramatic happened then.
There was a liberal
court, the Warren Court
when Nixon was elected, and
Nixon ran on a campaign promise
to change the court.
And he was unbelievably
effective in doing that.
Part of the reason
was that he was able to
replace Warren himself,
who was about to retire with
a conservative Chief Justice,
Warren burger, and then the
second critical part of this,
and Professor Murray and I
will talk about this more,
was that there was one justice, Abe Fortas
who Johnson had tried to
elevate to Chief Justice
to take Warren's place, and
the Senate did not confirm him
who Nixon succeeds in
driving off the court
through, really a lot
of false accusations,
exaggeration of a small ethical lapse,
threatening to put Fortas
and his wife in jail.
Fortas, who was then the most
liberal member of the court
gives up his seat, and
Nixon's able to replace him,
and that allows him ultimately
four justices in three years,
and we end up with a
totally different court.
Now, that is the same
conservative court we have today,
essentially, a conservative Chief Justice,
which there's been for the last 50 years,
a conservative majority,
different justices have come and gone,
but that conservative court
is still with us today.
So, why do I say that
that conservative court
is a major reason for the
inequality in our country today?
Well, the "World
Inequality Report" of 2018,
which is a report put out
by leading economists,
including Thomas Piketty,
they go through inequality
around the world
and in their discussion
of why inequality has been
rising the United States,
they say there've been two main drivers,
educational inequality,
and unprogressive taxation.
Well, each of those two main drivers
is absolutely attributable to the court
of the last 50 years.
How is that?
Well, so this is just one little snapshot
of the inequality that we
have in just one state.
The Washington Post did
this story a few years ago
about "Funding inequality in Pennsylvania"
and the highest spending
district in Pennsylvania
spends more than three times as much
as the lowest spending district,
which is in coal country.
Why does this happen, and
not just in Pennsylvania,
but in states around the country?
Well, because of two
important rulings from this,
Nixon court that was created 1969 and '70.
Rodriguez v San Antonio,
independent school board,
the court had an opportunity
to say that the Equal Protection Clause
required equal funding
across school districts,
and they came within one vote,
five to four of doing it.
And the thing about this case
is there was actually a lot
of momentum behind the idea
of equalizing funding.
Lower courts were ruling
that way, state and federal,
Supreme Court steps in
and stops that momentum,
and, the math is very clear.
If Abe Fortas had remained on the court,
it would have been five
to four the other way,
and we would have
equalized school funding.
And then second case, Milliken V Bradley,
said that you don't need
to integrate schools
across urban suburban lines.
So Detroit, which had a
heavily minority population,
the NAACP sued to try
to get the kids there
and to integrated education,
and the court came within
one vote of saying,
"Yes, you could have busing
across urban suburban lines
"to integrate you have to have it
"'cause it's the only way to
integrate places like Detroit,"
but again, because Fortas
was not on the court,
the Conservatives had one
more vote than the liberals
and that also was rejected.
So, those two cases are the main reason
we have such educational inequality.
Now, tax is part of the inequality
from the "Global Inequality Report"
You see many charts like this,
the tax rate on the rich
is going down, right?
It's been going down sharply.
Why is that?
Well, it's not because the American public
doesn't wanna tax the rich more.
In fact, the American public voters
very much do wanna
raise taxes on the rich,
polls show that all the time.
The problem is, the
big contributors do not
and you may remember
when the Trump tax bill
was pending at the end of 2017,
there were a number of
stories like this one
where big campaign contributors
were just flat out saying,
"Unless you lower my taxes,
I'm gonna stop contributing,"
and here's Lindsey Graham saying,
"We better lower taxes on the rich
"'cause otherwise, we're gonna
lose these contributions."
And Graham said,
"We're going to lose
republican control of Congress.
So the contributors drove this policy,
now, why is that the Supreme Court,
of course, because of the Supreme Court's
campaign finance decisions.
There was a time when we thought,
possibly, we could have
real campaign finance laws.
And after the Watergate scandal,
Congress passed a very good law.
The Supreme Court struck it down in 1976,
or struck down important part of it
and came up with that
incredible formulation
that "Money equals speech,"
which some people say is the original sin
in constitutional law today.
So because of that,
and as we know, there
have been case after case
where they've opened
the floodgates further
leading eventually to citizens united
and corporations can spend,
because of that, the
wealthy have more control
than ever before over our politics,
and one of the things they wanted
was to not have progressive taxation.
So there are many other areas
where the court has also
promoted inequality.
I have a lot of them in my book,
but the way they've ruled about unions,
employment discrimination, corporate law,
criminal law rulings have
led to mass incarceration.
And just to end this,
I would say that it's
really important to remember
this is what happened, but
it isn't what had to happen.
This was a politically constructed court
established by Nixon.
He was able to steal one
seat, Fortas' court seat
which was a while ago now,
but we all remember more recently
when the Republicans stole another seat,
Merrick Garland seat.
So, they were bookends.
One theft of a seat created
the conservative court,
50 years later, another theft of a seat
from Merrick Garland, maintained
the conservative majority.
So it could have all been very different.
We might have had Rodriguez
equalizing school funding,
we might have had millikin
actually creating integrated education.
And in the book, I quote Ed Spare who was,
and now sadly not very
well remembered professor
and poverty lawyer, who said,
after one big, big defeat
for the poverty law movement,
probably the biggest, Andrew V. Williams,
that it could have been
a different America.
And that's very much the point of my book,
that if this had all been different,
it could have been a different America.
So that's a little intro to the book,
but why don't we just start talking?
(audience clapping)
- That was a great intro to the book,
very comprehensive, A plus.
So, this is where I start, you
start with the Warren Court
and you take it as an article of faith
that the Warren Court was a high watermark
in the United States and certainly,
in the legal culture of the United States.
A high watermark for progressivism.
Have you, perhaps, overstated
the case for the Warren Court?
- You might say overstated,
you might say that I graded
on a very easy curve, right?
So the thing is, as you mentioned,
I just finished writing
this book, Buck versus Bell
about this 1927 case
where the Supreme Court
not only allowed this poor young woman,
Carrie Buck to be sterilized, but really,
actively embraced the
eugenics movement and said,
"We need to stop the tides of imbeciles
"from overwhelming our country."
And when I was working on
that book, I did go back
and it's amazing to see
just how regularly the
court was not only wrong,
but horrible, right?
I mean, Dred Scott sues and they say,
"You don't have a to sue as a black man
"for your freedom."
And then plus he says when they say,
"You don't have a to sit in
integrated railroad cars."
And I'd written, as you mentioned,
a book about the New Deal
and, FDR comes into Washington
and the country is near
collapse, 25% unemployment,
families just sitting on the streets
surrounded by their furniture,
they've been evicted,
the country is in ruins,
FDR comes up with a New Deal program,
the Supreme Court begins
striking down the New Deal
So I would say that after all of that,
yes, the Warren Court
didn't do some of the things
we might have wanted, but it
was such a breath of fresh air,
and it did a lot of good.
- I'm gonna push back on this.
I think you're exactly right
that the court has
always been pro business.
I mean, if you think about
the Gilded Age court,
the trust busting court,
like they were not interested
in antitrust legislation,
they were actually
actively invalidating it.
The Warren Court is kind of a dip
and what is framed on either
side is a pro business court,
but I wanna push back
on the kind of hate-geographic
portrayal of the Warren Court
as being perhaps more
progressive than ever.
So here are a couple of issues
or cases decided by the Warren Court.
So Hoyt versus Florida, 1961,
which upheld a state law
that allowed women to be
exempt from jury service
and in upholding that law,
the court says that,
"Women are needed for the life of the home
"and domesticity and don't
need the additional burden
"of civic participation."
Equally problematic is a case called
Braunfield versus Brown in 1961,
where the court allows for
blue laws to be upheld,
even though they have a disparate impact
on individuals who observe a
Saturday and Sunday Sabbath.
And then,
in Lassiter versus North
Hampton county in 1959 case,
it upholds the constitutionality
of voter literacy test,
and that's only repealed
through the congressional action
of the Voting rights Act of 1964.
So, are we making too
much of the Warren Court?
They did lots of great things,
but they don't actually spell out
why Brown versus Board of Education
is decided the way it does.
It doesn't give us a very clear answer
for why separate but equal is a problem.
It does great things,
but is it as progressive as
we've given it credit for?
- Well, it's a great question.
Part of my answer would be
that for Warren Court purists like me,
there were really two Warren courts.
There's a different Warren Court in 1962.
So Kennedy gets two appointments in 1962.
One of them White, who ends up
being somewhat disappointing,
but but Goldberg does
shift the court over.
So, there're people who say,
when you really wanna talk about
the essence of the Warren Court,
you really wanna talk about post '62 case.
- So now we're changing the timeframe?
- Well, I've always...
I actually say in the
book that people do say
that it's that post '62
court that's more prohibit,
no, you're and you could
point to the Terry decision,
and that's very much
the lead Warren Court,
they really uphold the
idea of stop and frisk.
So, no, they're not ideal.
And also, one thing I write about a lot
is my frustration that
in a lot of the cases,
the first case I talked about in the book
is King versus Smith, where
the court strikes down
the Man-in-the-House Rule
and Mr. Arbus who's been referred to here
won that case nine to nothing
before the Supreme Court,
and it's amazing and I cite
his memoirs in the book.
And that is an enormous victory,
but you might say as a critic,
it was a very narrow ruling.
- It's a statutory decision
that could have been a
constitutional decision.
- Absolutely, and a lot of
their rulings about the poor,
which I'm very excited about,
because as a former poverty
lawyer when I was at the ACLU,
we really weren't
winning much of anything,
so any victory is nice,
but yes, I was waiting for
them to declare the poor
as a suspect class and
to really get to work.
- I was waiting for them
to declare a right to sex
outside of marriage.
So maybe we were both
wishing for too much.
- There's that.
I was also waiting for
though, and actually,
I almost started the book with this.
Frank Michelman wrote a
very famous introduction
to the Harvard Law Review in 1969,
where it's like so unfathomable now
that this was part of the debate,
but he argued in, really,
a leading law journal
and a very prominent,
the introduction to the
Supreme Court issue,
that there's a right to
subsistence under the Constitution,
quite possibly, that there
might be an obligation
of the government under the Constitution
to give you welfare.
So, there were all those
things they could have done.
So you're right, if I
were a tougher grader,
I would give them, yes,
some kind of B, maybe.
But--
- But in the grand scheme of
things, a B is pretty good,
'cause the courts kind of been an F.
- Right.
The court has been an F.
But you're right, I like
to think of them as an A
only because, as I look at everything else
the court has done in its history,
when you look at them striking down
the Man-in-the-House Rule
and even a case like
Goldberg versus Kelly,
just unfathomable now that the court said,
"Before any locality in the country
"is gonna remove anyone from welfare,
"they get a right to a formal hearing
"under the due process clause."
I mean, people like us get
very excited about that, right?
That's a big, big deal.
- So you're right,
Goldberg versus Kelly is a high watermark.
There're all of these other victories,
and they're elusive and ephemeral
because they go away very quickly.
And I just wanna be clear,
I really do love the book.
I read the book a lot.
Really enjoyed it.
It's beautifully written,
it's compulsively readable.
It's super depressing,
but like, that's cool.
That's okay.
It's organized across
a number of different substantive
areas as Adam explained.
Workers, democracy, criminal justice,
education corporations, and
across all of those areas,
you explain in incredible
detail how the court over time,
has really shifted to the right
and toward a posture that
is much more pro business
and less concerned at
the rights and positions
of individuals and especially the poor
and because you do such a great job
of chronicling this
shift across these areas,
one of the places where I
was sort of left wanting more
is like I couldn't understand,
especially given your prior work,
why isn't reproductive
rights part of this story?
Like 'cause that is an area
where the court's right-ward shift
really has had a profound
impact on the poor,
and poor women particularly.
- Right and absolutely,
and gender in general
is not as much a part
of it as it could be.
I mean, I do mention
one really ironic thing
is that it really was the Burger Court
which did so many terrible things
that really came to the rescue of women.
That's right.
Some of this, though, was just a matter
of trying to constrain the subject
and it's, as you know,
such an enormous subject,
50 years of the court
and I was trying to hew
very closely to economics,
but you're right, that matters a lot.
Also, the gay rights decisions
are also very important.
I mean, all of these decisions
that liberate people,
liberate them economically as well.
- So to the gay rights point,
you were very down on the Roberts Court,
as well, you might be
but one high point for the Roberts Court,
certainly should be 2015
Obergefell versus Hodges,
which, as you know,
legalizes same sex marriage
across the country.
I actually think that that's
a really important moment
for the book because, as I think about it,
the veneration of marriage
that happens in that decision
from Justice Kennedy, and
if you've not read it,
Justice Kennedy, really loves marriage.
And he makes it very
clear in this opinion,
he wants someone to be
able to come find him
if he falls in the middle of the night,
like that's basically the
the gist of the opinion.
(audience laughing)
But you might argue that
the veneration of marriage
at a time when marriage
rates are declining
among most groups,
except the upper classes,
is actually a decision that gives rise
to even more income inequality.
So, again, not just the
omission of reproductive rights,
but how, like marriage is such a big part
of the Court's jurisprudence,
and especially seen as a high point
in the Roberts Court's jurisprudence
but it might actually feed your story.
- You're absolutely right.
And there are so many other
roads I could have gone down,
that's absolutely one I should have,
but I was much more, I'd
say bread and butter about,
like in the employment context,
I talked about, like the first three cases
in the introduction, Maetta
Vance and Lilly Ledbetter
and jack rose, these
stories are so horrible
that the court, five to four,
rejects people who have been
horribly discriminated against
in the most callous way
and also make up the laws they do it.
So I guess,
I wasn't really looking for
things to give them credit for,
and I also wasn't looking
to expand the brief
as much as I could have
'cause I just looked at
things like those rulings,
and I thought, "It's just a crime
"that people don't know
about Maetta Vance,"
and for those of you who don't know,
it's just this horrible case
where she was the only
African American woman
in the catering department
at Ball State University.
The things they did to her,
the woman who supervised her every day
used words like Sambo and
slapped her in the face
and another white woman
boasted about her family
in the Ku Klux Klan, they
were just horrible to her.
And she sues Ball State,
and it gets up to the Supreme Court.
And they say, "You know, that woman,
"the woman who slapped you
and Sambo and all that,
"she's not really your supervisor,
"'cause although she supervises
you on a day-to-day basis
"and tells you what you have to do,
"because she can't hire and
fire, she's not a supervisor."
And when you read that, you're just like,
"This is so horrific and the
people don't know about it."
And poor Jack Rose also
who was absolutely a victim
of age discrimination.
He got a Jury Award, there was
no question about any of it.
And they just come along and they say,
"You know, the standard we use
"in all those other
forms of discrimination,
"like when you sue for sex discrimination,
"race discrimination,
"we're just gonna raise the
standard for age discrimination
"even though the language
is exactly the same."
So I mean, I did focus on
some of the appalling things.
I just feel like I wanted to ring a bell
and tell people, "Do you
realize what your court is doing
"and no one's in the streets protesting?"
- What they're doing right now.
I mean, there are two cases
before the court right now,
one involving a civil rights statute,
this is the Byron Allen case Comcast
versus National Association
of African American own media,
and then another case, Wilkie,
which involves the age
discrimination and Employment Act.
And in both cases,
the corporate interest is
trying to have the standard
for presenting a claim actually raised.
So we're seeing this
right now before the court
and no one is talking about
either of these cases,
like sort of ratcheting up
of what civil rights
claimants have to prove.
- Totally, and I think
we know when we read
the section of the newspaper
about the Supreme Court,
it's like reading the obituaries.
You have to prepare yourself
for what's today is hard,
yesterday is hard as you is,
the poor parents in Mexico who--
- [Melissa] Mesa?
- Yeah, the border patrol
shoots their poor kid to death
for no reason, and the court finds a way
that they don't even get to
sue over it, five to four,
so, what do we do about
this parade of horribles?
- Well, that does seem
to be One of the themes.
It's not necessarily even
substantive decisions
that are problematic,
but decisions that actually
limit access to the courts.
So, Mesa is clearly a decision
where access to the
court system is limited.
But you talk about the rise
of this pro arbitration movement,
which actually starts out as
being a pro worker movement,
but then gets co-opted and manipulated
into something that is really pro business
and pro corporate interest,
and the court embraces it
wholeheartedly in that form.
- Totally, and when I was in law school,
there was this very nice professor,
older than Professor Frank
Sander, and everyone loved him
and he was like Mister
arbitration and people thought,
"Oh, arbitration, that sounds great.
"It'll like cut down on the cost,"
and yes, as you described, arbitration,
which started out as this
idealistic pro consumer movement
ends up being taken over by corporations
and being used in ways
that it's just shocking.
Like right now,
they are writing mandatory
arbitration clauses
into almost everything to
the point that pretty soon,
probably no one will be able
to sue their employer ever
no matter what they do to them,
because they'll be
forced into arbitration,
no one will ever be
able to sue, their bank,
the store that they buy things from.
While I was writing the
mandatory arbitration
section of the book,
I got an announcement from Chase saying
that now all of my banking
relationships with them
were being put in mandatory arbitration.
And I wanted to check to make sure
they did the second horrible
thing, which is to say,
"And also you can't have a class
"when you go into arbitration,"
and they did do that as well.
So, it was literally,
it was happening quicker than
I could write it in the book
these horrible things.
- Well, so the part in the
book where they talk about
arbitration and the rise of arbitration
and the elimination of class action,
'cause it all works together.
So limiting the option
for aggregate litigation,
forcing people into arbitration
as opposed to actual adjudication,
you mentioned Italian colors,
which is a court case,
I think it's from 2014.
Is that right?
- Sounds right.
- Sounds about right.
So Italian colors is a
restaurant in Oakland
that I used to frequent
when I lived in Berkeley
and What was sort of
interesting about it is like,
the conservative legal movement
is always talking about
individual liberty.
Interestingly, five members of the court
are identified as members
of the Federalist Society,
which if you don't know,
is a debating society
for conservatives and libertarians.
And one of their profess tredos
is this commitment to individual liberty.
What could be more in keeping
with the idea of individual liberty
than this mom and pop Italian
restaurant in North Oakland
that the court completely shuts out
in favor of American Express?
- Right, it's a great point.
It's a fascinating case.
And it's why I really, ultimately feel
a lot of what the court is really about
is just siding with the
powerful against the weak
and that was what they
did with Carrie Buck
when they allowed her to be sterilized.
That's what they did in a
lot of civil rights cases,
but it's what they did in Italian colors
because the American Express
is a bigger Corporation
than little restaurant.
And they like the big corporation.
They seem to always like
the big and powerful.
So, let's talk about the
inflection points in the book.
So the book identifies
a couple of real game
changer moments for the court
where the court could go either way,
and they invariably pick
the terrible way, right?
So, one such moment is the moment
where Earl Warren recognizes
he's going to leave the court
and he goes to Johnson,
Johnson tries to have Abe Fortas
elevated to Chief Justice.
Abe Fortas runs into unethics,
well, it's actually more
of a tempest in a teapot
than anything else.
It's a minor ethics infraction
that is easily corrected
and honestly, today would
be of no moment, I think,
but he is shot down at the Senate
and not only is he shot
down at the Senate,
it dogs the rest of his
career as an Associate Justice
and Nixon basically puts
all of the administration
on the case of drumming
Fortas out of the court
Which they do successfully.
Fortas is then replaced,
Earl Warren is replaced
with Warren Burger,
so that's one set of inflection points.
Another inflection point that
he mentioned is Bush v Gore,
the 2000 election case,
which gives the presidency
to George W. Bush
and in doing so, also hands George W. Bush
two opportunities to shape the court,
one of which occurs in 2005
when Chief Justice Rehnquist dies
and he is replaced by
Chief Justice Roberts,
and then when O'Connor
retires from the court,
and she is replaced by Alito.
Rehnquist for Roberts
is maybe an exact match,
O'Connor for Alito really
drives the court to the right,
and then you frame the
Nixon-Fortas debacle
with the question of Merrick Garland
and that stalled nomination.
What other inflection points
you see in our current moment?
Is Brett Kavanaugh, an inflection point
where we had an opportunity
to shift the court?
Might we understand Ruth Bader Ginsburg's
failure to step down
during Obama's second term
as an inflection point
that we will be regretting
going forward?
What do we make of some of these things
that are happening now
that really the repercussions
are gonna be more predictive
than seen right now?
- Yeah, no, these are all great points
and part of what I think you're getting at
is just that the Republicans
have always gamed the
Supreme Court a lot better
than the Democrats have at every juncture.
And even in extreme ways,
like the Fortas case
where Nixon engaged in dirty tricks,
but just always they're more disciplined.
I mean, Mark Twain famously said,
"I'm not a member of an
organized political party,
"I'm a Democrat,"
and that applies very
much to the Supreme Court.
So, look at Anthony Kennedy's
decision to step down,
he stepped down at the
absolute last moment
when he could be assured
that a republican president
would have a Republican Senate
who would confirm a successor.
He does not appear to be in bad health.
So that was a very conscious
passing of the baton.
And if you look at the numbers,
I quote a study in the book,
almost all the conservative justices
managed to hand their seats
off in the last 50 years
to other conservatives.
The liberals never do it.
- Marshall is a...
- Yeah, Marshall is a great example.
If Marshall had stepped down,
if Marshall remained on
the court, he actually,
he lived through the beginning
of the Clinton administration.
If he had stayed on the court,
we could have had a Clinton replacement
instead of Clarence Thomas.
But, that's been a pattern,
and yes, Ruth Bader Ginsburg,
but also Steve Brier, they
could have stepped down
at the end of the Obama
administration and been replaced.
So these things add up
and these are reasons
why that five, four majority
has stayed in place.
And you mentioned bush versus Gore,
and people look at that
case, and they say,
"Boy, the conservatives
all voted for the person
"they wanted to be president.
"They wanted Bush 'cause
they're Republicans themselves,"
that's true, but--
- Or they wanted to have
a beer with him that way--
- If they wanted to have been
with him, it's quite possible.
But the other thing they were voting for
is they save the
conservative court, right?
If Gore had been elected in 2000,
he would have immediately
started appointing
liberal justices, that
conservative court would be over.
So for people like O'Connor and Rehnquist,
they love the conservative court.
That was their life, and
they were voting to keep it
by putting Bush in office.
- Do you think they had an
idea, O'Connor especially,
do you think O'Connor
had an idea of the court
going so far to the right when he did?
I mean, 'cause there are some suggestions
that she was shocked, dismayed
that someone like Alito took her seat
as opposed to a woman who
would be conservative,
but maybe more of a moderate?
- I think that's right,
and I think she probably wanted
the court to remain the way it was
when she was in the center.
And it did when Alito replaced
her became more conservative,
but, she's also not a liberal,
and I think she would be more concerned
if the court had become more liberal.
And, you know, there is this
sort of a bit of a mythology
about Justice O'Connor
and I mentioned I'm gonna be
on a panel in a couple weeks
with Evan Thomas, who wrote
a wonderful biography of her,
when she was first appointed to the court,
some feminist scholars wrote
these law review articles
about how it's great that the
first woman is on the court
because you can already
see in her jurisprudence,
concerned about children
and outsiders and all that,
and it's just not true.
And one of the cases I
talk about in the book,
The Kadrmas case
where there's this rural
North Dakota family,
their nine-year-old daughter
goes to school 16 miles away,
and the school system
starts charging for the bus.
They live below the poverty line,
the father works part
time in the oil industry.
They can't afford the bus fee,
so they challenge it.
They say there should be a waiver
for poor families like themselves.
The way in which O'Connor,
who writes the majority
opinion, five to four,
dismisses the idea that little Sarita,
nine-year-old Sharita
should have any right to get to school,
public school for free,
that's part of who she is too, right?
I mean, she's not so warm and fuzzy,
she's more liberal than Alito,
she probably didn't want
him to be her replacement,
but she didn't want Ginsburg
to replace her either.
- Yeah, so with that in mind,
the Republicans have
really played a long game
in terms of the court.
The Democrats have not been
super organized on the court
and this election cycle
shows no sign of improvement.
I think in the last
debate, the last question,
there were no questions about
preserving the rule of law
or bolstering democratic institutions,
instead, the last question was,
tell me your personal motto,
- Right.
(laughs)
- What do you make of
some of these proposals,
which honestly have been
tagged as really far left
about changing the
composition of the court,
adding additional justices,
imposing term limits,
even changing the
composition of the Senate
to allow for DC to have two senators,
Puerto Rico to have two senators
so that you might be able to change
the nature of judicial appointments?
So lots of different ways
to sort of deal with the
question of the court.
What do you think of them
and what do you think of them being tagged
as really leftist or far left?
- Yeah, I mean, there are a lot of them.
My general reaction is that,
I'm not so interested
in them in large part
because I don't think
they're gonna happen.
A lot of them require a
constitutional amendment,
some of them don't,
we could expand the size of
the court by legislation,
but it's just not gonna happen.
I just don't--
- It happened in the 1930s.
This is how Franklin
Roosevelt got the New Deal.
- Well, he threatened to back the court
but it was very controversial
and people hated him for doing.
- And now they love him.
- They do, they do.
It can occasionally work,
but I guess where I was going to with this
is if we had an FDR in office right now,
maybe he could do that kind of thing.
We don't have a president
in office, We've--
- Sorta let that go.
(audience laughing)
- Yeah, we let that go.
But I guess what I'm saying
is, I think it's a distraction.
I think the main thing
is the Democrats need
to win the White House.
That is how the court will change.
I don't think we're going to get
this (speaks foreign language),
some amazing new way we're
going to organize the court.
Think tanks are working
on these proposals--
- Is it more important
to win the presidency
than it is to win the Senate
if you care about the court?
- Well, you need to win both, right?
I mean, as you mentioned--
- This is the Democrats.
So if you had to pick
one, what would you pick?
(Adam stammers)
Which is more important if
you care about the court,
winning the presidency or
winning back the senate?
- Well, I mean, they're
both very important.
I mean, I--
- No, you have one.
(audience laughing)
(Adam laughing softly)
- I like having a president.
- Really?
- Yeah, I do.
- SO, I thought you would have said,
given the concern about the court
that the senate would be more important,
because if you could win back the senate,
you could force the president
to put up more moderate nominees
for all of the federal court positions,
not just the Supreme Court.
- Till Joe Manchin
tells you how hard it is
to get elected in West
Virginia as a Democrat
and he votes with Mitch McConnell...
I guess I don't believe
the Democrats in the Senate
would be that disciplined.
I think having the power of appointment
is really, really important.
But they're obviously both important,
but what the Democrats should be doing now
is talk about all this stuff.
As you say, it doesn't come up
in the debates, which is bad,
but They can raise it on their own.
And it should be part
of the presidential
candidates' stump speeches,
it should be raised in
every Senate election.
I mean, this matters to people,
and one of the things I was
trying to do in the book
was to show, this is
not some ethereal thing
about what would you
like the law to be like
when you look at the
inequality in our country,
and the fact that the middle
class is hollowing out.
When we read these articles
about how 40% of the country
couldn't come up with
$400 in an emergency,
a lot of this is because
of the Supreme Court.
And we need to relate this to people
as the court is about your paycheck,
it's as important to your household budget
as affordable care is,
the Affordable Care Act.
- Court as a kitchen table.
- Yeah, it's a kitchen-table issue,
and we're not hearing
anyone talk about that,
and they should be.
- So, is part of that
just because the court is
almost shrouded from the public
in this kind of veil of mystery?
If you're not a lawyer,
very few people actually could
tell you who is on the court,
if the number of people on the court are,
what the court courts do,
not just the supreme court
but all of the lower federal courts.
Is that part of the gap in
making the case to the public?
Like most people don't know
what the court is doing.
- I think that's right.
And one exception to this was,
we mentioned Lilly Ledbetter,
who her story was horrible.
She was a manager at
the Goodyear Tire rubber
in Gadsden, Alabama.
She found out when someone left her a note
that she was being paid much less
than the men who were hired after her.
She sues and then loses,
of course, in this court,
because they say,
"You had to see within a
hundred and eighty days
"of when they first
started under paying you,"
and she had no way of knowing
she was being underpaid.
so terrible, terrible case.
But what was different there
is Lilly Ledbetter is an
amazing woman who went out there
and spoke publicly and became
the face of this issue.
And lo and behold, the first
law that President Obama
signed when he became president,
was the Lilly Ledbetter Fair Pay Act,
but part of the reason for that is,
this amazing woman who said,
"You did this to me,
"I'm gonna make sure everyone
knows what you did to me."
And we need more of that.
We need faces on these stories,
we need people to hear about...
You know, Maetta Vance,
when I was putting together the slideshow,
I actually look for a photograph of her.
There's no photo
and I called the lawyer
who represented her,
and he said,
"She did want did not wanna
be the face of this story,
"but also, she really felt beaten down.
"First by Ball State, but
then by the court system,"
and you can see why I'm
totally empathetic to her,
but we need these faces out there saying,
"Look at what this court is
doing to ordinary working people
"who just wanna go to work
in the catering department
"and not be racially harassed,"
put that out on the campaign trail.
- Well, that's also part
of the work of the court.
I mean, if you read the
Supreme Court opinions,
even where they are anchored by a record
that is just filled with this
kind of human interest story
like the Mesas, for
example or Maetta Vance,
the court kind of drains it
to this bloodless disposition
of statutes of limitations or what not,
so part of it is how they
write about their work,
how they do their work.
You might say that the opinions,
if they are public
documents to be consumed,
they are actually drained
off any of the elements
that would make them
interesting to the public.
- That's absolutely right.
The people in their stories disappeared,
and particularly, when the
conservatives are ruling against
people like Maetta Vance,
you barely can figure out who she is
or what happened to her,
that's exactly right.
- I mean they're erased from the picture?
- Absolutely.
- So, okay, lemme take a step back,
and the book is focused on this question
of income inequality, economic inequality,
and the way in which
the court has basically
foreclosed opportunities
to make this a bigger part
of our jurisprudence
of constitutional law.
So you might imagine two
ways that we could address
income inequality or economic inequality
through constitutional law.
One might be a kind of
equal protection way
which is to consider the poor,
a vulnerable group for
purposes of constitutional law
and to provide for
group-based remediation.
Another way might be, again,
through constitutional law
kind of rights based or
fundamental rights based
to think of this along the
lines of substantive due process
and that there is a certain right
to a bare level of subsistence,
the kind of thing that Frank
Michelman was talking about,
in his "Harvard Forward"
Which of these two paths would you favor,
and which do you think would
be more likely to get traction?
- So, great question.
And, when I started writing the book,
the original introduction I wrote was,
it began with a lengthy discussion
of the Frank Michelman law review article,
which I really admire a lot,
and I knew him when I was in law school,
and then contrasting it
with around the same time,
Powell writes "The Powell memo"
this famous memo that Lewis Powell wrote
right before he's appointed the court
where he writes it for the
Chamber of Commerce and says,
"Hey business community,
"we need to come up with a
plan to take over the court
"and make it rule for us."
And so, it was gonna juxtapose
these two different memos
or law review articles
written the same time
and say, Powell won.
I guess the reason I ended
up moving away from that
is ultimately, although
I see a lot of beauty
in what Frank Michelman was saying,
I don't ultimately think it
was a pragmatic approach.
And I ended up as I was
working on the book,
being more attracted to the idea
that the Warren Court should have granted
poor people's status as a suspect class
and went about that way.
I don't think America is ready
for a constitutional right to subsistence,
and I think that if I had
focused on that too much,
it might not have been persuasive.
- Okay, so I'm with you.
So maybe not a right to subsistence.
How would we draw the
parameters of a suspect class
that is based on indigence or poverty?
- Yeah, it's very tricky.
And one reason they say
that it was beginning to be
thought about in the '60s
is really, poor people weren't
even thought of as a group
until the '60s.
It was really during the '60s
that we began to even think
of poor people as a class.
But, yeah, it's always gonna
be fuzzy around the edges,
and a lot of this comes up
with setting the poverty line, right?
What is the poverty line?
Who is poor?
That's not an easily answered question.
Then the other part of it, though,
that's difficult is, how
do you say that a law
unconstitutionally burdens the poor?
'Cause almost every law
burns the poor, right?
I mean, oh, you're charging
a dollar to get on the bus?
Well, that burns the
poor more than the rich
or that you're gonna have a fee
to get into a national park?
So both parts of that question
become very difficult.
Who is poor and what
is so much of a burden
that you're going to say
it's unconstitutional?
I don't have needy answers to it,
but what I would have liked
would be for the court
to go down that road
and do it the way the court does it,
case by case and say,
"This law goes too far."
One thing I think, tomorrow,
as I mentioned here,
I'm gonna be speaking
somewhat like this with,
oh on Saturday, actually
with with Peter Edelman,
who is a hero in the
poverty rights movement,
and actually was one of the
Clinton administration officials
who resigned in protest
of Clinton signing the 1990s sixth law.
- Worst thing Bill Clinton has ever done.
- There you go.
So, Edelman writes a law review article
which I talked about in the book
where he says,
"Well, one of the things
We could have done
"if we'd recognize the
poor as a suspect class
"was go after the
inequality in welfare laws."
Like now, if you're in
California and New York,
your welfare is really not sufficient,
it's certainly not munificent.
But if you're in Arkansas or
Wyoming, it's just terrible,
and very few people in
Wyoming get welfare at all.
Well, this is a federal program,
isn't that a violation of equal protection
that people in some states are
at least getting some welfare
and people in other states are not?
So, there are ways we could have used
this suspect class that...
We don't know exactly how it played out,
but it would have made
things a lot better.
- Yeah, so let me just
sort of bring it back
to the present-day court.
One of the cases on the table this term
is the Affordable Care Act.
Again, some more.
This is a law, I think,
that is really aimed
at addressing the question
of income inequality,
especially as it concerns the provision
of Health Care Services,
which is one of the major
drivers of bankruptcy,
of Consumer bankruptcy and
indigence in the United States.
What do you expect the court
to do in this particular case?
Is this going to be a moment
where the Chief Justice swoops
in in his tights and cape
and saves the Affordable
Care Act once again
or is this the moment
where you have a full five
and you can robustly strike this down?
- Well, Yogi Berra said,
"Predictions are perilous,
particularly out the future.
But I do think that Roberts
did not wanna strike down
the Affordable Care Act,
and I don't think he wants to now.
What I'm more worried about
is if Trump gets one more
appointment to the court.
I do think it's probably dead.
And, and I get flashbacks
to, as I mentioned,
having written a book about
the beginnings of the New Deal
when that court aggressively struck down
the National Industrial Recovery Act,
which was FDR's big plan
to help victims of the great depression
when they struck down the
Agricultural Adjustment Act,
I think we could get to that moment again,
literally if Trump is reelected.
So, I think we're probably
okay with this case right now,
although, who knows,
but I think that lurking down the road
could be major attacks on welfare loss.
- So, a second term
not only unleashes an
emboldened president,
but also further emboldens the court?
- And getting one more justice,
'cause as we saw with the Fortas story,
boy, one justice makes such
a difference on this court.
- Right.
Okay, so we have come to that time
where we are incredibly depressed,
and it's time for you to ask questions.
(laughs)
- Happy questions.
- So, if you'd like to
come and ask your question,
there are mics at the side of the room.
Please, in order to accommodate
as many questions as we can,
if you could keep your
question truly a question
and keep it brief.
So there're mics over
here, oh right over here,
right over here.
So, if you can make your
way to the side of the room
to ask your question,
and to keep it brief,
that would be fantastic.
No, I think others will join you,
you'll just get the ball rolling.
- [Audience member] Okay.
- [Tech support] Hold
on, this mic is slipping,
so just hold on, just all of it.
- You mentioned if Ruth
Bader Ginsburg had resigned,
we may have been in better shape.
But when could she have resigned
to avoid a Merrick Garland problem?
- The--
- I mean, when you said that
I said, "Yeah, but we went..."
- There was a Senate majority
in part of the Obama
administration, Democratic Senate.
- [Audience] The first term?
- The first term?
- The first term, yeah,
The first term, yeah.
- [Audience member] Oh, so that's--
- Yeah, yeah, yeah.
- That's the only time
she could have done it?
- Right, but just like Anthony Kennedy,
when he saw that it
might be the last moment,
he did it before the election
that could have lost the majority.
So, he, she, and I'll put
Briar in there as well,
even though he's a bit younger.
They could have both looked and said,
"We don't know that the
Republicans won't win
"this next Senate election.
"So this is the last moment
when we know if we step down,
"there'll be a democratic president
"and a democratic senator."
- [Audience member]
Okay, I mean, that was--
- Yeah, yeah, yeah, yeah.
No, good point.
- Hi, forgive my voice, but
I'll try to keep this short.
The problem I have with your analysis
is I think you're putting
the cart before the horse
and by that, and I think the
example you gave about Kennedy,
no, Powell talking to
the corporate whoever
reflects what's actually going on here.
The court is reflective of
the, well you said 10%, 1%.
They're protecting the
interests of the people
who appoint the court.
So, it's not, I think, that
the court independently
is some temple law
school debating society,
they are actively protecting
the power of the plutocrats.
And that's the real problem.
- I think we agree on all of that, yes.
- Other questions?
- [Audience member] Yeah, sorry,
I'm told there's a mic stand switch.
- And now it's too tall.
- [Audience member] Yeah, and...
(audience chuckling)
- That's okay.
- So, given that, as you were saying,
every law burdens the poor,
then why not replicate things like the ADA
and affirmative action in colleges
and Institute affirmative
action for the poor,
which I think in itself,
might require them to be
recognized as a suspect class?
So isn't there more value
in recognizing poverty
as a suspect class than
you guys recognized?
- I actually might push back on that
because the fact that race is recognized
as a suspect class is what
makes affirmative action
so imperiled today.
I mean, the fact that
the court has to review
all race classifications,
including affirmative action programs,
under strict scrutiny
is what makes affirmative
action problematic right now
or makes it risky.
It might actually be easier
to not denominate the
poor as suspect class
if you wanted to create
affirmative action programs,
because then the government
would only have to show
that there was a rational
basis for having the program,
and that would be incredibly
easy to establish.
- I don't disagree with that,
but I'm gonna say something
related or different,
which is not contrary, but to say that,
I think your instinct
that it would be good
if we started just
doing more for the poor,
is a great one because if
you look at the history
of when the courts started
ruling for the poor,
there was a poor people's
movement in the '60s,
it was very powerful, there
was a welfare rights movement
that was having protests
around the country.
Some of you may know Maya Wiley from TV,
but she was a colleague of
mine at the ACLU and a friend,
and her father, George Wiley,
was a leader of the
Welfare Rights Movement,
and those movements, those protests,
put pressure on the court,
and people were writing about poverty,
"The Other America" by Michael Harrington,
that sort of stuff makes the court realize
that the nation is changing
its mind on an issue.
So, I would like to see some of the things
you're talking about as a way
to get at the court and say,
"Hey, you should also be paying
more attention to the poor."
- So, one place where you do see,
I think a sort of upsurgence
and what might be out kind of
modern poor people's movement
is in reproductive justice.
But interestingly, what we've seen instead
is the court kind of co-opt,
all members of the court,
co-opt the reproductive justice vernacular
for its own purposes.
So, last term, as you
noted in the Atlantic,
Justice Thomas wrote a concurrence
about likening the use
of abortion to eugenics
and saying that this was a
way that poor communities,
the disability community and
the African American community
would be targeted by
the "abortion industry."
So there's also sort of the risk
of having a poor people's movement
or a reproductive justice
movement co-opted by the court
and have sort of liberal tropes
used for conservative aims.
- Yeah, definitely.
- Am I allowed to add something?
- [Melissa] Yeah, sure.
- So I don't know to what extent
this has expanded beyond New York,
but I know New York City, at least,
recognizes source of income discrimination
in the housing context,
you can't discriminate against people
who get government benefits.
So, to what extent can you
kind of sidestep the court
and just be instituting
these really narrow laws,
and could that, in itself be successful
to achieve the same end?
- It's a great point, but
the thing is, as we know,
the reason you want the
Supreme Court to do things
is so there'll be a
national policy, right?
New York City is much more enlightened
than a lot of the country
on poverty issues.
We're not gonna get Arkansas and Wyoming
and really most of the
country to do those things.
So, I think, we in New
York can inspire the ideas,
but we would really, it'd be
great to have the Supreme Court
do what it was doing in the '60s
and lay down strong national rules.
- So I think that, like if
your book's argument stands
that the court has historically protected
the corporate interest
and wealthy top percentage of the country
and Congress has been proven
to both Democrats and Republicans
heavily favor corporate big
donors and the presidency,
even within the Democratic primaries,
the question of corporate
donations is a big one out there.
Where do you propose that we
start to find the protections
of economically disadvantaged
people in the country?
- Boy, it's a great question.
I mean, some of that is,
how can we help to change our politics?
I do think so much of it comes
down to campaign finance,
as I mentioned.
A lot of people say we need
a constitutional amendment
to overturn, not just Citizens
United, which gets the focus
but really Buckley versus Vallejo, right?
But the good news on that is,
there is a lot of support for
campaign finance regulation
and citizens united was
heavily opposed by Republicans.
No one likes the idea of the
rich controlling politics.
So I would like to see a movement,
really, a bipartisan movement
around taking money out of politics.
And yes, I think a
constitutional amendment,
but that should be the
next constitution amendment
we all work for.
- Well, the part of the book
where you talk about the
aftermath of citizens united
is actually chilling,
like the idea of house representatives,
Senators on both sides of the aisle
going down to these skiffs call centers,
where they just dial for dollars
for hours and hours and hours,
and they have these quotas
that are put in place
by the parties themselves.
And so it's dramatically
change the nature of the work
of Congress and also the interests
that are able to attract
Congress's attention.
- Right, it's so hidden from view.
As you say, there're
these private call centers
right near Capitol Hill,
and both parties have them.
And members of Congress are
supposed to go there for hours
and hours and hours every week,
and they're talking to
rich people all day long
hearing what rich people want.
Does that affect them?
Absolutely.
- So you talked a little
bit in your conversation
about the role of the court
as sort of not being
as visible in politics
as either Congress or the presidency.
And I was wondering whether or not
you think that has sort of helped or hurt
the courts efforts, and whether you think
the so called successes,
or at least improvements
of the Warren Court
coincided with an increased visible role
of the court in politics?
- Interesting.
Yeah, no, it's a great question.
The Warren Court was
much, much more famous
than the courts before it.
I mean, for better or worse.
I mean, during the Warren era,
you could drive around
certain parts of the country
and there were big billboards that said,
"Impeach Earl Warren"
Everyone knew who he was,
and that was because
he was changing lives,
the court was, so dramatically,
so it was a well known court then
and I do think the
obscurity of the court now
allows 'em to do a lot of bad things,
because, as we were talking about before,
if people saw Maetta Vance on 60 minutes
and heard her story,
and what the court just,
threw her out of court, it's
just not being covered enough.
But I think if we understood
all the things they're
doing against workers,
in favor of the wealthy,
if they understood that
Buckley versus Vallejo
led to the fact that
it Adelson and his wife
have given $300 million to Super
PACs in the last 10 years--
- [Melissa] Sheldon Adelson?
- Sheldon Adelson, yeah.
If people knew this stuff,
and knew that the court was doing it,
I think it would have a big effect.
So I think that, really,
we need to try to shine more
of a light 'cause I think,
it might shame 'em, a bit.
- If the presidency
should shift to the left
and the Senate Democrat,
would it be worthwhile
to go after Kavanaugh?
Do you think--
- [Adam] Mean to try to impeach him?
- In anything.
(laughter)
- It's a broad range.
- It is a broad range.
It's a complicated question, right?
It is amazing that he was confirmed,
despite the fact that
the polls at the time
showed more Americans believed Doctor Ford
than believed him and, if there
had been a different Senate,
he would have been rejected.
If the Democrats took the senate back,
why wouldn't they think
about undoing that injustice?
I think it's unlikely to happen,
I think there's a real bias in favor of,
once people get on the court,
they stay there but it
it's unfortunate, I think,
because a slightly different Senate
would not have confirmed Kavanaugh.
- Turning to the concept of the income
and wealth inequality issue
and it's growing exacerbation et cetera,
the richest states in the
country are blue states,
and they clearly are
gonna be safe blue states
for the Democrats in the
presidential election.
Trump won last time and
looks to win this time,
because he wins in all the poorest states.
And those are the ones that,
for instance, as you point out,
don't even get the Medicaid treatment,
supplements, et cetera, that
a Medicaid poor person would
and most of these instances
of these horrible treatments
come out of these poor regions.
How do we explain the
inability of these people
to not vote their economic self interest?
Like they go to the polls,
and they vote for the guy who says,
"You are going to get nothing,
and we're gonna get it all,"
but it's not because the billionaires
that Sanders likes to talk
about are voting for Trump.
That's not where he's winning.
He's winning in these states
where the poorest people are
turning out to vote for him.
What would make them actually
vote their self interest?
- That's a big question and
you know it was posed years ago
as "What's the matter with Kansas?"
And I think we're all
struggling with that.
I mean, I lived in Alabama for a while,
and that is about the
reddest state that there is,
and you're right.
They are so poor,
they get so much more
money from Washington
than they send to Washington.
I tried to point that out to them
and how my state New
York, it's the reverse,
but these are very complicated
cultural, tribal issues.
I think if we can crack that nut,
we could change the country,
but I don't have an easy answer to it.
- My former colleague at
Berkeley, Ian Haney Lopez,
wrote a book called "Dog Whistle Politics"
which attempts to address some of this.
(indistinct chatter)
- Okay, I'm curious about your thoughts
about issues that magnify inequality
where even a less very
relentless racist Warren Court
would have ruled similarly
to a Burger court,
namely related to US imperialism.
So in particular, and an echo
of the insular cases in 1980,
the Burger court ruled,
in Harris v Rosario,
that the federal government
is allowed to fund Medicare
and Medicaid at lower rates
in the "Territories than in the States"
as long as there's a so
called rational basis.
So, to hone in on my question,
what types of tactics and re-imagining
do you think is necessary for policymakers
and more importantly,
for grassroots movements,
in order to pressure the court to curtail
the US's ongoing occupation
of US territories
and foreign countries for that matter?
- Wow.
(audience laughing)
- NYU.
- Yeah, I know
(audience laughing)
- [Audience member] I don't go to NYU.
- It's worth it.
- Yeah, boy!
I would not know where to
begin to answer that question.
I think what you pointed
out is really important
that there're many
forms of bias, and that,
in fact, the court, and
absolutely part of it
is a domestic focus.
And I don't know how you
change minds about that,
but I think it's probably
an educational process.
And, I think the liberals
should be more excited
about that issue and more
concerned about it than they are,
but I think we need to
just talk about it more
and push it push it further,
but I don't hear live discussion
about that particular form of inequality.
I don't know how to change minds,
but I would say
someone should hold a law
school conference on it
and get it started.
(laughs)
But you're absolutely right,
you've raised a very valid point.
- Last question.
- Sure.
So, as far as I know,
most of the good Warren Court
decisions protecting the poor
remain at least formally on the books.
So, let's say someday,
there's a successor to the Warren Court,
it's favorable to those precedents.
What are like the litigation
strategies or test cases
or policies that you think
are ripe for challenging,
building on those earlier case?
I know you mentioned
disparate welfare benefits across states,
but I was wondering if
there are any others
that you thought were like
the low-hanging fruit there?
- Yeah, that's a great question.
You know, a lot of it comes down to,
there is this one terrible decision.
So, we mentioned Goldberg versus Kelly,
which was the case that said
that you have a right to a hearing.
Just to two weeks later, the
court issued this decision,
Dandridge V Williams and I mentioned it
because it was the case that led...
It's fair to say, we could
have had a different America.
That was a case where the court,
not only upheld a terrible
family cap in Maryland
that said, basically, larger
families after a certain point,
would get no more in welfare
than smaller families.
But the language they
use, they basically said,
"Welfare is one of these things
"that the court just
can't get involved in.
"It's up to government and policy people.
"We're washing our hands off it."
Dandridge needs to be overturned, right?
Because that was such a firm
closing of the door on welfare.
I think it can be.
I mean, things get
overturned all the time.
But I would say it's not like
that's not standing there
as a big obstacle, it is.
And I think at Brooklyn
law school, recently,
they had a conference
about what a sad moment Dandridge was
for anyone who cared about
poor people, and it was,
but I would say the start would have to be
over turning Dandridge, going
back to the Warren Court idea
that we have to care more
than ever about poor people,
and about things like welfare subsistence,
and then if we did that,
Goldberg set a nice tone
of poor people matter, welfare matters,
and we could keep moving on from that.
But so I think overturning
Dandridge is the key
to the whole poverty law world.
- So, is there one last question?
I think so.
- I just wanna point out
beforehand that I'm not a lawyer
but your discussion
really hit home with me.
And I wanna change the focus, somewhat,
of what you're talking about.
It's my feeling
and I've been living this
for the last 10 years,
the more your education, the
more intelligent you are,
the more you could back up any feeling,
anything that occurs.
And this is exactly what
you were talking about
with the Supreme Court.
Your decisions, your
conclusions, your arguments,
in my mind, are based on your
experience, your beliefs,
and everything that's taken
place in your life beforehand.
What's missing from,
I think, the education
and all these discussions, is
the thinking process itself.
What leads to your decisions?
And it's very clear that
it's a moneyed class,
it's a powered class that
leads to these decisions.
And I think this is due
to a monumental failure
in the law schools.
I don't know how much ethics is taught,
how much it's gone into, on
what decisions depend on,
not so much on the thinking process,
but on the beliefs that the person has.
To me, the Constitution is
really an incredible document.
All the arguments that
you've been talking about
seem to discard the basis, the foundation,
the caring of the Constitution,
for the equality for
everyone in the country.
In fact, I would like to add
that I think it's institutions
like NYU, Harvard, Yale,
all the other big law schools,
by having tuitions of
50, 60, $70,000 a year
that are basically
perpetuating the situation
because they're selecting
students from the power elite.
- Well, I'm gonna defer to you
to talk about the law school part of it,
one thing I would say though,
that we were just talking about actually,
before we came up to the stage was,
some of this is true of
the Supreme Court as well.
If you look at the nine justices up there,
they all went to Ivy League law schools,
they're all millionaires, they're
not a representative body.
And they're the ones who
are making all these laws.
So I think part of what you're saying
applies to the court itself.
And one of the things
I talk about the book,
is at the height of the Warren Court,
when they were actually
ruling for poor people,
five of the liberals who were
doing this grew up in poverty
or near poverty.
I think it makes a
tremendous difference, right?
I mean--
- With that in mind, though, Adam,
it's not as though everyone on this court,
as currently constituted,
grew up as the scions
of patrician families
like Sonia Sotomayor grew up 10 miles away
in a housing project in the South Bronx,
Clarence Thomas grew
up in pinpoint, Georgia
in abject poverty.
The idea that everyone on
the court is a millionaire,
they're millionaires,
'cause they're on the court.
- And also they have been--
- And they sell books.
- Yeah, and they'd had good jobs
before they got to the
court, that's right, but--
- Or not, though.
Like when Justice Sotomayor was nominated,
and she filled out her
financial disclosure forms,
one of the things that was noted
was that she had a debt for dental work.
I mean, she's a federal judge
making like a hundred and
fifty thousand dollars a year,
living in New York City.
- And when you read her opinions,
you see that she hasn't
lost touch with the poor.
So that's actually, I think, in some ways,
an argument for my side
that someone like her
who really who grew up
in the Soundview projects
in the Bronx, she remembers that,
but when you get to
someone like John Roberts
who grew up in--
- Indiana?
- Indiana, in a wealthy community
and his father was a steel plant manager.
And, Dandridge v Williams,
the opinion I keep mentioning
was written by Potter Stewart,
who had the most elite
background of prep school
and, no offense, but Yale
College and Yale Law School
and Oxford--
- I'm still paying them.
I'm still paying them, okay?
(laughter)
- So, the way in which he
wrote about poor people
in Dandridge v Williams
was very much someone
who really had never encountered one.
- So again, I think the question
speaks to this effort
that is, I think, underway
on the far left, or it's
portrayed as a far-left effort
to really diversify the court.
Diversify, not just the Supreme Court,
but the lower federal courts as well
by sort of expanding the
nominees where they come from,
the schools they come from,
the kind of work experiences they've had,
more union lawyers, more public defenders,
maybe less prosecutors,
maybe less big law partners.
Do you think that will come closer
to getting us to a court
that is more in line
with the progressivism of the Warren Court
and less the pro business court
that we've seen for so
much of our history?
- I think it could make a big difference.
And when you point out is right.
We know that Republicans very often
appoint big law firm partners
and prosecutors to be judges,
but so do Democrats, right?
And where are the people who
were working in poverty law
in Brooklyn, when do they get
to be on the federal courts?
They don't, even under
a democratic president.
Absolutely, I mean, the things
that we believe in as a party
should be reflected in who
we appoint to the courts.
- All right, on that note,
we will conclude the evening.
Thank you so much for
our colleagues at NYU law
and especially,
the NYU student chapter of the
American Constitution society
for partnering with us.
Thank you so much for this evening, Adam.
We wish you great success with your book.
I'm Melissa Murray.
Thank you for your engagement tonight.
Keep up with the Brennan Center's work
by signing up for their
newsletter at brennancenter.org
and following them on
Facebook and Twitter.
Thank you all for coming tonight.
Thank you.
