Strict Scrutiny is, in the hosts’ words, “A podcast about the Supreme Court and the legal culture that surrounds it.” I am a frequent listener; the hosts are quick-witted legal minds that provide a partial-but-supported analysis of the current cases and happenings in the Supreme Court.
In a recent episode, host Melissa Murray interviews Adam Cohen about his new book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. This episode was uncharacteristically one-sided and left me wishing that Murray engaged with more of the ideas that Adam promotes in his book. As a disclaimer, I have not yet read the book, so the content of this post is specific to the episode (listen here).
As a response to the podcast, I penned a letter to Murray emphasizing the areas of the conversation that I wished received more airtime:
Melissa,
I am probably more conservative, and further removed from the legal profession than most of your listeners. Caveats out of the way, I listened to your recent conversation with Adam Cohen, and although I enjoyed it, I was hoping to hear more pushback and thoughtful consideration of his assertions during the conversation.
I have not yet read Cohen’s book, but I’ll summarize what I heard to be his argument during your conversation:
- The Warren Court from 1962-1962 protected the rights of the people and better served the duties of the Supreme Court than any Court since
- Nixon gutted the Warren Court, making way for a business-first, people-second judicial record since 1969
- Since 1969 the Court gave rise to two primary forms of inequality that continue to increasingly damage the nation
- Educational inequality
- Wealth inequality
Adam’s framing brings a number of questions worth asking in conversation, yet most of his arguements were accepted as fact for the purpose of your conversation. One question I was glad to hear early in the conversation, is why did he start with the Warren Court?
The answer was that Adam views the Warren Court as a high water mark in Court history; and even though you asserted that the Courts on either side of the Warren Court in history would have been considered too conservative and pro-busienss to Adam, I would have liked more attention paid to Adam’s underlying belief about the Court.
The Warren Court during that time appears to me as a bit of an anomoly in the judical record. To use a subset of Warren’s reign as cheif justice as a starting point for a 50-year trend, is to obfuscate a considerablily longer trend and structural consequence of how the Court functions.
Adam seems to judge the Court based on a civil and human rights scale, I wish you specifically asked about his weighing mechanism and how he rated a justice based on her tenure. By which mandate are certain Courts “better” than others?
While I agree the government should do more to protect the rights of underprivileged classes and reduce inequality, I’m not sure that Adam is evaluating the right entity. A Court that has lifetime appointments, is not accountable to the Public, and that has no mandate to govern the people, may not be the right entity to judge on how well it benefits the public good for all.
In the words of Warren Court Justice, Felix Frankfurter, writing in West Virginia State Board of Education v. Barnette:
But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could, in reason, have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review.
Structurally, the Court will most likely be the most conservative entity of government due to its makeup and its mandate. I believe that Adam is judging the Court on a rubric made for Congress, and I hoped the conversation would explore the reasoning behind his assertions.
I will not be able to have this conversation with Adam, and the best I can do is write my thoughts in this letter. Thank you for each engaging episode; they built enough of an emotional connection to cause me to write this letter.
Polly Wanna Math 