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Justice Denied: 50 Years of Supreme Court Rulings That Gutted Civil Rights, Voting Rights & Expanded Inequality

Web ExclusiveMarch 06, 2020
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In an extended interview, lawyer and journalist Adam Cohen discusses his new book, “Supreme Inequality,” which argues the U.S. Supreme Court has blocked social progress and expanded inequality over the last five decades. He examines in detail the court’s gutting of the landmark 1965 Voting Rights Act in 2013, its controversial 2010 Citizens United ruling that opened the floodgates for unlimited corporate spending on election campaigns, and its 2007 rejection of Lilly Ledbetter’s claim of pay discrimination at a tire plant in Alabama where she worked for 19 years. Her case led to the Lilly Ledbetter Fair Pay Act, the first bill signed into law by President Obama.

Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, as we continue our interview with Adam Cohen, who looks at how over the last half-century the Supreme Court has made America more unjust. In Part 2 of our discussion, we continue with lawyer, author, journalist Adam Cohen. His new book is called Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.

We’re going to turn to the part about fair pay. In 2012, Democracy Now! spoke to Lilly Ledbetter. You may remember her name. She is the namesake of the Lilly Ledbetter Fair Pay Act, the first bill signed into law by President Obama. The act was passed in response to a 2007 Supreme Court ruling that rejected her claim of pay discrimination at a tire plant in Alabama where she worked for 19 years. I asked Lilly Ledbetter to talk about when she first realized she was getting different pay than people performing the same job, the men at her plant.

LILLY LEDBETTER: Someone had left me an anonymous tip. It had my name and four — three men. There were four of us that had the same exact job, nothing different, just a different shift. There were four of us, and my pay was 40% less than any one of those three. But the first devastating thought in my mind, when I turned sick, when I saw that, I knew it was true because mine was right to the dollar. And when I realized, the first thought was how much overtime that that had cost me. I was so embarrassed, so humiliated. I didn’t understand how I could get through a 12-hour shift facing people, not knowing who gave me the note, not knowing how many people in the factory knew the situation.

Well, I finally made it through my shift, but halfway through the night, it hit me like a ton of bricks: My retirement is based on what I’m earning. My contributory retirement was based on my salary. My 401(k) at the time was 10%, matched by 6% stock. And today, my Social Security. I am treated in my pay like a second-class citizen now for the rest of my life, and I have hit the ceiling, where I can’t do anything else about it. The Supreme Court even took away the two years’ back pay. And they shouldn’t have done that, but they did that, too.

AMY GOODMAN: In a 5-to-4 decision.

LILLY LEDBETTER: That’s correct, in the 5-to-4 decision.

AMY GOODMAN: So, that’s Lilly Ledbetter. We spoke to her in 2012 at the Democratic National Convention in Charlotte, North Carolina. She had addressed the convention. But go back and tell us, Adam Cohen, about Lilly Ledbetter’s story and why this was such a critical decision on the part of the Supreme Court when the case went before it.

ADAM COHEN: Lilly Ledbetter was an incredibly heroic figure. She grew up in poverty in Alabama. She wanted to go to college, and her parents wouldn’t let her go to college. She decides she’s going to become a manager at a Goodyear Tire and Rubber plant in Alabama in the 1970s, as a woman. You can imagine what that was like for her, the abuse she put up with. You know, they gave her some men to supervise, and one of the men just walked away and said, “I answer to a bitch at home. I’m not going to answer to a bitch at work.” She was harassed, groped, on and on and on. But she sticks with it, and she does a great job. And then one day she finds out, through an anonymous note, that they are underpaying her compared to all the men. And she takes action. She files a complaint. She gets a nice jury award because she was discriminated against, goes up to the Supreme Court and they come up with a crazy rule. They say, “Under the law, you had to file your complaint within 180 days of when they first started underpaying you.” But she had no way to know that she was being underpaid until she got that anonymous note. Ruth Bader Ginsburg, in dissent, points out that they were asking her to do the impossible. But basically this was just another case in which this Supreme Court does not like discrimination complaints by workers and goes out of its way to find some legal excuse to throw them out of court.

AMY GOODMAN: And so, of course, then this goes to Congress.

ADAM COHEN: Yes. And Congress, seeing how outrageous the new rule that the Supreme Court has laid down, passed the Lilly Ledbetter Fair Pay Act, actually the first law that Obama signed when he became president. So, that’s good, but there are many more employment discrimination cases where the Supreme Court has done terrible things, where we don’t have a law to correct them.

AMY GOODMAN: And I want to go to another employment case, the one of Maetta Vance, but before we do, let’s go back. And again, tell us the thesis of your book, Supreme Inequality, and what happened to the Supreme Court 50 years ago, how it could have been different. And talk about the role of Richard Nixon.

ADAM COHEN: Sure. We know that we live in a society that is economically unequal and getting more and more economically unequal. We wonder why that’s so. And some of the explanations that were given are things like, well, there’s, you know, more globalization, so jobs are going overseas, or more automation, or people point to policies of Congress and the president.

What I do in this book is I argue that the Supreme Court actually has had a central role in the last 50 years of making our country more unequal in every way, particularly economically unequal. And there are a number of ways in which they’ve done that. But one thing I point to is there’s something called the World Inequality Report 2018, put out by leading economists around the world, including Thomas Piketty. They looked at American inequality and tried to figure out what was driving it. They pointed to two things: our immense educational inequality and our lack of a progressive tax system. Both of those forces are directly attributable to rulings from the U.S. Supreme Court.

AMY GOODMAN: And talk about what — there are many people who might associate President Nixon with the term “dirty tricks” or the actions, dirty tricks. How does that relate to the Supreme Court and what he did there in reshaping it?

ADAM COHEN: Sure. So, where did this right-wing Supreme Court that we have now come from? It actually emerged 50 years ago. When Nixon was elected in 1968, he becomes president. He has the ability to fill the chief justice position, because Earl Warren is stepping down. Now, this is a major moment in the Supreme Court’s history, because the Warren Court had been a major force for progress and liberalism. You know, they decided Brown v. Board of Education. They decide the Miranda case, saying that criminal defendants have to be told that they have a right to remain silent when they’re being questioned by police. They decided many cases in favor of welfare recipients. So that was the Warren Court. Nixon comes in vowing to change it. He replaces Earl Warren with a conservative, Warren Burger, and then has an extraordinary opportunity to name four justices in three years, completely changing the direction of the court.

AMY GOODMAN: Explain what happened to Abe Fortas, who was on the Supreme Court, how not only didn’t he become chief justice, but he has to step down.

ADAM COHEN: This is a critical moment in the court’s history that has really been forgotten. So, when Earl Warren decides to retire, he goes to Johnson and says, “Replace me with another liberal.” Johnson makes a huge miscalculation. He chooses Abe Fortas, who’s already on the court, and says he’s going to elevate him to chief justice. He nominates him. Congress, the Senate, does not confirm him. There are a lot of reasons why they didn’t, including Fortas being too pro-civil rights and being — he would have been the first Jewish justice. But in any case, he is not confirmed. So that leaves the chief justice position open for Nixon to fill. He remains on the court.

When Nixon comes in, though, he is looking for more vacancies, and he wants to take every seat he can, particularly every liberal seat. He looks at Abe Fortas. He realizes he’s been weakened by his time in the Senate when he wasn’t confirmed. He’s also been weakened by a minor scandal, kerfuffle, that Fortas was accepting money from a nonprofit foundation for consulting work. He didn’t violate any law in doing that, didn’t violate any court rule. There wasn’t really anything wrong with it, although the optics were not great. Nixon sees his opportunity, gets his Justice Department to begin threatening Fortas that he will be prosecuted criminally and that his wife, who was a lawyer, who had previously been investigated for some illegal activities as a lawyer and cleared of them, that the Justice Department would investigate and prosecute her, as well. Nixon leaks all of this and — Nixon and his flunkeys leak all this to the press. Anyway, the pressure builds so much on Fortas, he decides to protect himself and his wife, keep themselves out of jail, and he resigns.

AMY GOODMAN: Where does John Mitchell come into this story, the man who himself would ultimately go to prison, the attorney general of the United States under Nixon?

ADAM COHEN: Yeah. John Michell is a major general in this army of people attacking Fortas. He actually goes to the Supreme Court and meets with Earl Warren, the chief justice, and conveys to him, you know, “We are very much after Fortas,” and, you know, tells him basically to put pressure on Fortas, which he does. This is extraordinary, the idea that an attorney general would go and pressure a chief justice and a justice. And yes, we know that John Michell had a thuggish air about him, because, yes, he ended up in prison himself for Watergate crimes. This was a tough man who got what he wanted in this case.

AMY GOODMAN: The first African-American justice on the Supreme Court, Thurgood Marshall, talk about the pressure on him. I mean, something like we’re seeing now with Ruth Bader Ginsburg when occasionally she goes into the hospital.

ADAM COHEN: Yes. Nixon was actively rooting for the liberals to die and get off the court. And when when Warren Burger would come visit him at the White House, he would always require updates on the health of any of the justices.

AMY GOODMAN: Warren Burger, the new chief justice at the time.

ADAM COHEN: The new chief justice, right. Nixon would ask for updates on the health of the liberal justices and how likely they were to remain alive. And yes, when Thurgood Marshall was in the hospital for a medical procedure, Nixon sent word that he wanted an update on Thurgood Marshall’s health. And Thurgood Marshall said, “It’s OK to give the president update, but you also have to tell him, you know, I’m not going anywhere.”

AMY GOODMAN: And what parallels do you see to today with Nixon’s obsession with the Supreme Court and Trump?

ADAM COHEN: Well, several. One that’s very important is when you think about this 50-year right-wing Supreme Court we’ve had, it’s bookended by two thefts of Supreme Court seats, right? We talked about the Abe Fortas seat that was stolen and made a conservative seat, should have been a liberal seat. But with the Merrick Garland nomination, we saw a seat that Obama was supposed to fill that, nominated an eminently qualified judge, Merrick Garland, and Mitch McConnell refused to hold hearings. And by doing that, that Merrick Garland seat ended up becoming the Neil Gorsuch seat. So they stole one seat to create the conservative Supreme Court, another one to keep it. And absolutely, the focus that Trump has on the Supreme Court, where he actually tweeted a few years ago, “We must always hold the Supreme Court.” And he’s working closely with the Federalist Society, a group of right-wing lawyers, academics and theoreticians, to choose justices who are really screened carefully to remain true to the most conservative principles.

AMY GOODMAN: So, I want to go back to this issue of employment law. We talked about the case of Lilly Ledbetter. Now let’s talk about Vance v. Ball State.

ADAM COHEN: So, Maetta Vance is really such a tragic figure. And we don’t know her story. It wasn’t reported much. And she’s a very private woman, so she did not take the public stand that Lilly Ledbetter did. In some ways I wish she had, because if people knew what was done to her… So, Maetta Vance was an African-American woman who worked in the catering department at Ball State. And part of the time —

AMY GOODMAN: Ball State, a university in Indiana.

ADAM COHEN: In Indiana, correct. And part of the time, she was the only African American in the catering department. She is subjected to such horrific racial abuse by her white supervisor, who uses words like “Sambo” around her, who at one point slaps her in the face and asks if she’s afraid, who has her husband and daughter coming in and racially harass her. This is all according to Maetta Vance. These are her claims in the case. But we never got to trial in it. And another woman, also according to Maetta Vance, another white woman boasted of her relatives in the Ku Klux Klan. So, Maetta Vance is being really racially tortured.

She files a lawsuit against Ball State, goes up to the Supreme Court. The Supreme Court says, “Well, all that abuse from her white supervisor, Ball State’s not liable for it because she wasn’t really her supervisor.” Although that white woman had the power to tell Maetta Vance what to do on a daily basis, the court said, as long as she didn’t have the power to hire and fire, she was not legally her supervisor. You know, Ruth Bader Ginsburg and the other liberals dissented and said, “This is crazy. This is not how workplaces work. Of course, when Maetta Vance shows up, this white woman has power over her. Of course she’s her supervisor.” But yet again, as with Lilly Ledbetter, the conservatives on the court found a clever way of throwing a really valid discrimination case out of court.

AMY GOODMAN: And so, what does that mean for discrimination law and for workers in this country?

ADAM COHEN: It’s had a huge impact, because it’s much harder to sue for all kinds of harassment as a result of that Vance case. For racial harassment on the job, also sexual harassment, unless you’re being harassed by the actual person who you can hire or fire you, the larger entity is not responsible. And there have been women’s groups that have done studies showing just how many, you know, lawsuits for sexual harassment and other harassment were thrown out after Vance, because of that very high bar the court created.

AMY GOODMAN: We’re talking to Adam Cohen. He’s the author of the book Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. Let’s move to civil rights law.

ADAM COHEN: So, I think one of the most tragic rulings of the last 50 years is a case called Shelby County, where the Supreme Court tore out the heart of the Voting Rights Act. Now, think about the Voting Rights Act. That’s not just any law. That is the crown jewel of the civil rights movement. Martyrs gave their lives in the South for the right to vote and to get that Voting Rights Act passed. It was adopted by a bipartisan Congress and reauthorized year after year by a bipartisan Congress, signed into law by conservative and Republican presidents. And the Supreme Court throws out one of the most important parts of it.

AMY GOODMAN: Before you tell us the whole story, I wanted to turn to a clip of a voice many people have become familiar with. Yes, in a major blow for voting rights, the Supreme Court gutted an integral part of the landmark 1965 Voting Rights Act in 2013. The act was a crowning achievement of the civil rights movement and helped transform the South. In a 5-to-4 decision, the justices ruled that Congress had used obsolete information in continuing to require nine states, mainly in the South, to obtain federal approval for voting rule changes affecting communities of color. Congressman John Lewis of Georgia reacted to the ruling. He was nearly killed when he led the 1965 march from Selma, Alabama, to Montgomery in what became known as Bloody Sunday. He was there marching for the right to vote.

REP. JOHN LEWIS: Today the Supreme Court stuck a dagger in the heart of the Voting Rights Act of 1965. They’re saying, in effect, that history cannot repeat itself. But I say come and walk in my shoes. And Justice Ginsburg described in her dissent, the history is relevant because voting rights have been given in this country, and they have been taken away.

AMY GOODMAN: So, that’s the legendary civil rights leader John Lewis, longtime congressman from Georgia. Adam Cohen, so go into detail in what this Shelby case was all about.

ADAM COHEN: Right. So, it was a challenge to the preclearance requirement of the Voting Rights Act. The preclearance requirement said that if election officials are going to make significant changes in how voting works, things like closing voting places, which they often do in black neighborhoods right before an election, moving polling places, which they often moved away from black voters, they had to get permission first from the Justice Department or from a federal court. And preclearance was applied to a certain category of states and localities that was set a long time ago.

Shelby County, Alabama, sues and said, “Well, you know, it’s not fair that Alabama is singled out, and Congress needs to totally recalculate all the states and localities that are covered by the act.” And Congress did hold hearings, and they decided, on a voluminous record, that the states and localities that were in the act were appropriate ones to be chosen. So, usually Congress has the authority to make these decisions. And remember, Chief Justice Roberts, when he was confirmed, told the Senate that he saw the role of a judge as being an umpire calling balls and strikes. So you would think in this case that he would defer to the considered decision of Congress that the jurisdictions that it chose were correct. Instead, he strikes it down and uses really a made-up legal basis. He said that the provision of the Voting Rights Act that said which localities were covered violated the equal sovereignty of the states.

Now, when that ruling came down, Judge Richard Posner, who’s a conservative Republican appointed to the appeals court in Chicago by Ronald Reagan, said, “There is no doctrine of equal sovereignty of the states.” You know, Chief Justice Roberts made that up. So the idea that on the basis of a made-up constitutional doctrine the court would strike down, as John Lewis said, really the heart of the Voting Rights Act is really appalling.

AMY GOODMAN: And how do you see that playing out today?

ADAM COHEN: Well, there have been articles. The New York Times did a good story about how right after this was done, states like Alabama rushed to close polling places, particularly in black areas. A lot of the difficulties that minorities have in voting today is directly attributable to the fact that election officials were empowered by the Supreme Court to disenfranchise minority voters, because they no longer need to preclear anything.

AMY GOODMAN: And what about Crawford v. Marion County Election Board?

ADAM COHEN: Yeah, another tragic case. This was a very strong challenge to Indiana’s very tough voting — voter ID law. So they required government photo ID in order to vote.

AMY GOODMAN: This is Vice President Pence’s state.

ADAM COHEN: Absolutely. And government-issued photo ID is a huge barrier for many voters, if you don’t drive a car, if you don’t have a driver’s license. In some cases, you need to buy a birth certificate in order to get one of these. It makes it very hard for people to vote. And that is the intention. We have, on the record, Republican activists saying, “We pass these laws in states like Indiana because we want to keep minorities and poor people from voting.” The court should have struck down this voter ID law; instead, they upheld it.

AMY GOODMAN: So, I wanted to ask how this book, Supreme Inequality, your focus on the Supreme Court, came out of your previous book, Imbeciles.

ADAM COHEN: Yeah. So, the book I wrote before this was about an infamous 1927 decision called Buck v. Bell, where the Supreme Court, unbelievably, upheld state eugenic sterilization laws. In the 1920s, a large number of states had laws that authorized states to sterilize women and men if they thought that their genes were bad, if they were, quote, “feebleminded” or if they were alcoholic or if they were indolent or lazy. I mean, it’s crazy to think of, but a lot of states had these laws. As many as 70,000 Americans were sterilized.

This goes up to the Supreme Court in a case brought by Carrie Buck. She’s a young woman who had a very tough life, grew up in a foster family where she ends up being raped by one of the relatives. The family sends her to the Virginia Colony for Epileptics and Feebleminded. She gets there, and they decide to sterilize her. They say she’s feebleminded, although she’s not. Goes up to the Supreme Court, 8 to 1, the court says not only can Carrie Buck be sterilized to protect the United States of America from her terrible genes, but we need more of this eugenic sterilization, because there are all these people with bad genes who are threatening to reproduce.

So that was the book that I wrote before Supreme Inequality. And one of the themes of that book, I thought, was how the court ruled on the side of the powerful against the weak. And as I was writing it, I thought, “Well, that’s what the court does today. And it’s been doing that for the last 50 years.” So I wanted to show that that same bias in favor of the powerful, the rich, and against the weak and the poor, has really been an animating force behind the Supreme Court, you know, since the 1960s.

AMY GOODMAN: And what is the effect of movements, whether we’re talking about the movement for educational reform and equal education of all communities, whether we’re talking about the Occupy movement and the challenge to inequality, a real focus of your book, that the Supreme Court has increased income and wealth inequality in this country? What is the role of these movements? How do they affect the high court?

ADAM COHEN: Absolutely central, movements. To some extent, when the court does the right thing, when it issues an important ruling, it’s, you know, the individual justices involved. But to a large extent, it is the tenor of the times, the zeitgeist, and the way in which movements make certain issues priorities.

So, in the 1960s, the Supreme Court was, again and again, ruling in favor of poor people, in favor of people on welfare, giving them the right to a hearing before they were cut off of benefits, striking down the infamous “man in the house” rule, which said that if a woman had a boyfriend, her children would lose their welfare benefits.

AMY GOODMAN: Wait. I know that this is just part of the theme of what you’re talking about, but that “man in the house” story, if you could talk about this case?

ADAM COHEN: Sure. So, in 1968, the court decided a case called King v. Smith. So, Ms. Smith was a mother of four, a widow, who worked picking cotton in the fields, worked in a diner in Selma, Alabama, where she lived, and also got a modest amount of welfare to raise her four children. One day, the welfare officials call her in, and they say, “We’ve learned, you know, through the grapevine, that you have a boyfriend.” And in this case, it was a man who had his own family, had his own nine children, who occasionally came by her house, and they had sex. And the court said — sorry, and the welfare officials said, “Under Alabama’s 'man in the house' rule, your welfare benefits get taken away.” A large number of states had this rule. This goes up to the Supreme Court, and —

AMY GOODMAN: And on the grounds that because there was a man in the house, because she had a boyfriend, what is the reason that she could lose her welfare?

ADAM COHEN: Well, these laws were passed by many states, really just because — you know, I think when people talked honestly, it was because welfare officials wanted fewer people on the rolls. They were looking for any way to get people off. Particularly in Alabama, they wanted to get African Americans off the rolls. But they said, you know, “Well, if there’s a man anywhere in the picture, he should be supporting the children.” This is a crazy idea, right? Because Ms. Smith’s boyfriend had his own nine children, and he did not have much money. He was not going to support her children. But it was a rubric through which they could throw her off the rolls.

So she challenges that. And it was a real act of bravery, because for a black woman in Selma, Alabama, in the 1960s to take on the white establishment and say, “No, you’re depriving me of my right to welfare” — and she was punished. The local groceries wouldn’t extend her credit. She, you know, had trouble getting food. All that. But she stood up for her rights, goes all the way up to the Supreme Court. And they do rule, nine to nothing, that “man in the house” rules are illegal nationwide. And as many as 400,000 children across the country benefited from her stand.

AMY GOODMAN: And again, this is before the change that you document in Supreme Inequality.

ADAM COHEN: Right. This is the Warren Court, the liberal Warren Court, which actually did care about poor people and did care about people on welfare.

AMY GOODMAN: And so, keep going. You were making this case, as you were talking about these cases that make their way to the Supreme Court.

ADAM COHEN: Yes. So, when they get to the court, the fact that there was a strong welfare rights movement at the time, that people were literally marching in the streets for the rights of welfare recipients, that Michael Harrington wrote a book called The Other America that educated Americans about just how many poor people there were around the country, these things made a huge difference. Honestly, the fact that right around the time of the Smith v. King case, Martin Luther King was shot, and put a real light on the fact that, you know, we had so much further to go in civil rights in this country. These things matter. These things affect the justices, affect how they vote. So, absolutely, speaking out loudly makes a difference.

AMY GOODMAN: So, finally, what do you see happening with the Supreme Court today?

ADAM COHEN: Well, we’re at a pivotal moment. We really — you know, the court is quite conservative. It just got more conservative when Justice Kavanaugh replaced Justice Kennedy. I think it’s really — you know, it would be a dire situation if President Trump gets to appoint any more conservatives in the place of any more liberals. And Ruth Bader Ginsburg is well into her eighties. I think that the Democratic candidates for president need to be talking more about the importance of the Supreme Court and reminding people that if they don’t want a far-right Supreme Court, that could really change our country, you know, even more and perhaps strike down major federal laws that we all rely on, that we need someone who will appoint liberal justices.

AMY GOODMAN: Can I ask, do you see President Trump trying to pack the court, if he were to become president again, meaning add to the court, something that FDR tried many decades ago?

ADAM COHEN: Well, I think we’ve learned with President Trump never rule out anything, so I wouldn’t put it off the table.

AMY GOODMAN: And what does it mean? I mean, what are the rules around the Supreme Court? Why are there nine Supreme Court justices?

ADAM COHEN: Yeah. So, some aspects of the court are set by the Constitution. The number of justices is not. It’s set by congressional statute. And actually, at the beginning of the republic, there were only six justices on the court. So, it would only take a vote in Congress, a law signed by the president, to add to the number. Yes, President Trump could do that. But actually, if he just gets one more appointment, or even with what he has now, he has a very favorable right-wing court right now. He’s doing very well.

AMY GOODMAN: Well, I want to thank you, Adam Cohen, lawyer, journalist, former member of The New York Times editorial board. His new book is out. It’s called Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.

To see Part 1 of our discussion, go to democracynow.org. I’m Amy Goodman. Thanks so much for joining us.

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