Maetta Vance, an African American catering assistant at Ball State University, came to the Supreme Court a few years ago with a case of on-the-job racial harassment. Vance said a white woman who directed her work on a daily basis used racist words around her, including “Buckwheat” and “Sambo,” and laughed while her husband and daughter taunted Vance with racial epithets. The woman also slapped her for no reason, Vance said, and later asked her, “Are you scared?” Vance said a different woman in the department bragged about her family’s connections to the Ku Klux Klan and called her a “porch monkey.”
The Court threw out Vance’s case, by a 5–4 vote. Vance’s lawsuit against Ball State required her to show that the woman who harassed her was her supervisor, but the five conservative justices said she had not done so. As long as the woman could not do things like fire or demote her, the Court said, Ball State owed her nothing. The decision was a clear misreading of the law, and one that bore no relation to how workplaces operate in the real world. Justice Ruth Bader Ginsburg, writing for the liberal dissenters, said a worker who directs another worker’s daily activities is, of course, a supervisor. She also warned that the Court’s decision would make it harder to “prevent discrimination from infecting the nation’s workplaces.”
Jack Gross, an Iowa insurance executive, had a similar difficulty with the Court a few years earlier. He was one of a group of high-performing workers over the age of fifty who were demoted by his company on the same day. Gross was forced to hand his responsibilities over to a younger worker he supervised. A jury ruled that he had been a victim of age discrimination and awarded him damages.
The Court overturned the jury’s verdict, again by a 5–4 vote. Gross met the standard of proof required in race and sex discrimination cases. The Court decided, however, that victims of age discrimination had a higher burden of proof, even though the federal laws against race, sex, and age discrimination used identical language. The dissenting liberal justices accused the majority of “unabashed . . . judicial lawmaking.”
Then there was Lilly Ledbetter. Ledbetter was a manager at Goodyear Tire & Rubber’s plant in Gadsden, Alabama, where for years she was paid far less than the male managers. She had no way of knowing she was underpaid, because the plant’s salaries were secret, until one day she got an anonymous note telling her. Ledbetter sued for sex discrimination, and a jury ruled in her favor and awarded her damages.
The Court reversed the jury’s verdict, again by a 5–4 vote, with the most irrational reasoning of all. It said Ledbetter had made her claim of discrimination too late. She would have had to file it, the Court said, within 180 days of when Goodyear decided to pay her a discriminatory wage. It did not matter that, at the time, she had no way of knowing how much male managers earned. Ginsburg, in dissent, pointed out that the Court was requiring women suing for pay discrimination to do the impossible. The ruling against Ledbetter was so obviously unfair that Congress overturned it with the Lilly Ledbetter Fair Pay Act, the first law Barack Obama signed as president.
If it seems that the Court’s five-justice conservative majority has been twisting the law to rule against employment discrimination victims, there is a simple reason: it has. The Court’s battle against victims of on-the-job discrimination is, however, part of a much larger war. For five decades, the Court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of the law.
In campaign finance law, it has opened the floodgates to money from wealthy individuals and corporations. In election law, it has upheld rules and practices designed to make it more difficult for the poor and racial minorities to vote, and struck down a key part of the Voting Rights Act. In corporate law, the Court has made it harder for employees and consumers to sue when they are injured. In criminal law, it has favored prosecutors so consistently that it has contributed significantly to the nation’s mass incarceration crisis. And on a wide variety of issues, the Court has ruled, often cruelly, against the poor.
The financial and emotional toll on the losing parties in these cases has been considerable. Jack Gross was devastated when the Court manipulated age discrimination law to reject his case. “One of the things I have always counted on was the rule of law,” he said. Gross was also upset that, in addition to losing the damages the jury had awarded him, he was out more than $30,000 in legal expenses. “That is money,” he said, “that was intended to help my grandchildren get a college education so they wouldn’t have to starve their way through like I did.”
Ledbetter was crushed by her defeat, which she learned about when she was on the way to a church luncheon with her husband, who had been diagnosed with cancer. “I’d done what I could,” she said. “Goodyear was simply a greater force than I could overcome. That was clear as day.” Ledbetter had not only lost the damages the jury awarded her. It occurred to her that, because her pension and Social Security were tied to her salary, she would continue to be underpaid for the rest of her life.
As shattering as decisions like these have been for individuals, in the aggregate they add up to something much larger: a systematic rewriting of society’s rules to favor those at the top and disadvantage those in the middle and at the bottom. The Supreme Court has played a critical role in building today’s America, in which income inequality is the largest it has been in nearly a century. The Court’s decisions have lifted up those who are already high and brought down those who are low, creating hundreds of millions of winners and losers.
It did not have to be this way, and there was a time when it was not. On October 5, 1953, Governor Earl Warren of California was sworn in as chief justice, and his arrival launched a progressive legal revolution. In his first year in office, Warren led the Court to a unanimous ruling in Brown v. Board of Education, which held segregated schools unconstitutional. When the South rose up in massive resistance, the Court did not back down, and it proceeded to integrate bus stations, restaurants, and other public spaces.
The drive for racial equality was only part of the Warren Court’s “rights revolution.” The Court also recognized new rights for criminal defendants, including the right to an appointed lawyer for those who could not afford one. It championed the rights of non-Christians by banning official state prayer in public schools. It expanded the rights of the poor in many ways, including by adopting new protections for welfare recipients.
The Warren Court was a powerful force for change, but a fragile one. There had been bitter opposition to its rulings every step of the way. The Court had many enemies, including an Alabama congressman who complained that “they put Negroes in the schools, and now they’ve driven God out,” and right-wing groups whose IMPEACH EARL WARREN billboards dotted the rural landscape. By 1968, Richard Nixon was campaigning for president by running against the Warren Court, which he said in a Reader’s Digest article had “weakened law and encouraged criminals.”
During the 1968 campaign, Warren began to worry about the future of the Court. President Lyndon Johnson was not running for reelection, and in early June, the young and charismatic Robert Kennedy was assassinated. It looked increasingly as though Hubert Humphrey, Johnson’s vice president, would be the Democratic nominee and that Nixon would be the Republican candidate. Warren, who was adept at reading the political landscape, thought there was a good chance Nixon would win.
If Nixon became president, it would pose a direct threat to everything Warren had built. Nixon was promising to appoint conservative justices, and Warren, who was seventy-seven, was afraid one of these could be the next chief justice, who would work to bring the Warren Court’s accomplishments crashing down. Warren, however, had a plan for saving the Court, and American law, from Nixon.
On June 13, 1968, Warren went to the White House to tell the president he intended to resign. Warren asked Johnson to appoint a new chief justice who would keep the Court on its progressive path. Johnson was quick to agree. As a liberal Democrat, he did not want the Warren Court’s legacy undone. Johnson also had a personal stake. As president, he had worked to build what he called the Great Society, by waging a “war on poverty,” launching Medicare and Medicaid and other ambitious social programs. Many of these initiatives pushed the federal government into new areas, and were vulnerable to legal challenge. Johnson knew that a Court filled with Nixon appointees would be as much of a threat to his own legacy as to Warren’s.
Johnson nominated Abe Fortas, a sitting justice who was a close friend and adviser, to be the next chief justice. Johnson, who as Senate majority leader had been the wily “master of the Senate,” did not anticipate the trouble Fortas would have in being confirmed. Republicans attacked him for his close ties to Johnson—the word “crony” was used often—and southern Democrats defected over Fortas’s pro-civil-rights record. In the end, Fortas could not win Senate confirmation, and the final months of Johnson’s presidency ran out with no replacement for Warren confirmed. Johnson and Warren’s plan had failed spectacularly.
Nixon won the presidential election in the fall of 1968, and when Warren retired, in mid-1969, Nixon replaced him with a conservative, Warren Burger. The fabled Warren Court was now over, and the Court’s new leader was an intellectually unimpressive jurist who shared Nixon’s conservative ideology and hatred of the Warren Court.
The Court still had a liberal majority, however, which Nixon was intent on changing—by taking matters into his own hands. While he was waiting for Warren’s retirement, Nixon decided to create another vacancy by targeting Fortas, who had been weakened by his Senate rejection. Nixon’s Justice Department investigated the liberal justice and, even though it did not find that Fortas had broken any laws or court rules, Nixon’s underlings still threatened Fortas into resigning. That gave Nixon his second appointment to the Court, and when two older justices retired for health reasons, Nixon was able to make two more appointments. These changes all unfolded quickly. In his first three years in office, Nixon named four justices, including a chief justice—one of the most intense periods of transformation in the Court’s history.
The four Nixon justices, when added to two moderate conservatives who were already serving, killed off the liberal Warren Court and replaced it with a new conservative majority. The new Court was officially called the Burger Court, after Chief Justice Warren Burger. The role of one man had been so great in creating it, however, that journalists gave it a different name: the Nixon Court.
The Nixon Court has been extraordinarily durable. In the five decades since Burger arrived, there have been only conservative chief justices: Burger, William Rehnquist, and John Roberts. Since January 1972, when the last two Nixon justices arrived, these conservative chief justices have consistently had conservative majorities behind them.
There are many reasons the Court’s conservative majority has endured for so long. Partly, it is simply that since 1969, Republicans have held the White House for more years than Democrats. That has given Republican presidents more time to appoint justices, and they have overwhelmingly chosen conservatives.
Conservative justices have also been more strategic in timing their retirements. Anthony Kennedy stepped down in the summer of 2018, when he was apparently in good health, while there was a Republican president and a Republican-controlled Senate, ensuring that his successor would be a conservative. Ruth Bader Ginsburg did not retire early in President Barack Obama’s second term, when he could have replaced her with a younger liberal justice. In the aggregate, conservatives have done a much better job of handing their seats to justices who share their views than liberals have. An analysis conducted in 2014 found that all six of the most conservative justices who left the Court since the mid-1960s were replaced by Republican presidents, while of the six most liberal justices, only one was replaced by a Democratic president.
Republicans have also used hardball tactics. That was true in 1969, when Nixon drove Fortas off the Court. It was also true nearly fifty years later, when Antonin Scalia died and President Obama nominated Merrick Garland, a liberal federal appeals court judge in Washington, D.C., to replace him. If Garland had been confirmed, the Court would have had its first liberal majority since Nixon’s presidency. Senate Republicans, however, refused to even consider Garland, insisting that the next president should fill the seat. When President Donald Trump took office, he nominated Neil Gorsuch, a conservative federal appeals court judge from Denver, who was quickly confirmed. Fortas’s forced resignation and the Senate’s refusal to consider Garland were bookends on a five-decade era on the Court: one disreputable move created a conservative majority and the other preserved it.
One of the main reasons for the conservatives’ long-standing control of the Court, which has continued uninterrupted since Nixon’s time, is that they simply seem to have wanted it more. Republicans have made the Court a focus of their politics in a way Democrats have not, and they have come to look on it with a sense of entitlement. As President Trump said on behalf of his fellow Republicans in a March 2018 tweet: “We . . . must ALWAYS hold the Supreme Court!”
When Earl Warren and Lyndon Johnson met at the White House in June 1968, they hoped that after Warren retired the Court would continue on the path it was on. They wanted it to remain a champion of the poor, working people, and racial minorities and to keep building a more equal and inclusive America. They hoped that the Court would always play the role in society that it had in the Warren era. Instead, the Warren Court turned out to be a historical outlier. When it ended, the Court resumed its traditional role in national life: protector of the rich and powerful.
That is not, of course, the story the nation tells itself about the Supreme Court. In American history and civics classes, the Court is generally presented as the branch of government that looks out for vulnerable minorities and ensures fairness for all. The justices have often talked of themselves this way. In a 1940 case, the Court declared unanimously that courts are “havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.”
Popular culture has reinforced this noble vision of the Supreme Court. There was a movie about Brown v. Board of Education, with Sidney Poitier as Thurgood Marshall, the lawyer for the black schoolchildren, and another one about Gideon v. Wainwright, with Henry Fonda as Clarence Gideon, the criminal defendant who won poor defendants the right to court-appointed counsel. Hollywood has yet to make a movie about Citizens United v. Federal Election Commission, in which the Court ruled that corporations have a First Amendment right to spend as much money as they want to influence elections.
Throughout the nation’s history, the reality of the Supreme Court has been very different from the idealized version. Before the Civil War, the Court regularly sided with slaveholders, in cases like Dred Scott v. Sandford, the infamous decision rejecting an enslaved man’s suit for his freedom. In the years after the war, the Court upheld racial segregation in the South against constitutional challenges.
In the Progressive Era, from the 1890s to the 1920s, when Congress and state legislatures passed laws protecting workers, the Court ruled that they violated the bosses’ “liberty of contract.” During the Great Depression, the Court struck down President Franklin Roosevelt’s early New Deal programs, which were designed to provide emergency jobs to the unemployed and relief to destitute farmers. The Court gave in only after Roosevelt threatened to pack the Court with more sympathetic justices. During World War II, while the nation was fighting bigotry overseas, the Court endorsed the evacuation of Japanese Americans to internment camps.
The Warren Court was not only an exception to the Court’s historical role; it was a brief one. It formally lasted nearly sixteen years, from Warren’s arrival as chief justice, in 1953, to his retirement, in 1969. It was not until 1962, however, when President John F. Kennedy’s two nominees arrived, that the Court had a strong liberal majority. Most of the Warren Court’s best-known and most influential decisions came during its last seven years. When the Nixon justices arrived, the Court drastically reversed course from its Warren-era liberalism in a wide array of areas, including employment law, education law, campaign finance law, corporate law, and criminal law.
The post-1969 Court has not been conservative in all areas, and in some it has made the law more progressive. It recognized a constitutional right to abortion in 1973 in Roe v. Wade. It also struck down state laws that criminalized same-sex sexual activities in 2003, after initially upholding them in 1986, and it recognized a constitutional right to marry for same-sex couples. These more liberal rulings have generally been on social issues, and they have largely reflected the national consensus. The justices have also not always divided on ideological lines. Kennedy regularly voted in favor of gay rights, and John Paul Stevens, a liberal, wrote the Court’s opinion upholding strict voter ID laws.
In the most important and controversial cases, however, the Court has generally broken down into conservative and liberal camps. In recent years, new justices have been selected for their clearly demonstrated conservative or liberal views and arrive with an ideological mission. When President Trump nominated Brett Kavanaugh, Vice President Mike Pence assured conservatives that they could count on his vote because he had a “proven judicial philosophy.” The current Court, after years of being carefully constructed in this way, seems more like a political body than a legal one.
A half century after the end of the Warren era, the Court’s politics are not merely conservative but in many ways extreme. One academic study that examined the Court’s decisions from 1938 to 2010 concluded that 2010 was the most conservative year in that entire seventy-two-year period. The Court has moved even further to the right since 2010. Charles Fried, a conservative Harvard law professor who served in the Reagan Justice Department, said in a 2018 Harvard Law Review essay entitled “Not Conservative” that the Court’s extremism can be seen not only in its positions, but in the reckless ways it has arrived at them. On important issues, it “has undermined or overturned precedents that embodied long-standing and difficult compromise settlements of sharply opposed interests and principles,” Fried said. “These decisions are not the work of a conservative Court.”
While the Court moved to the right on many subjects after Earl Warren retired, there is no area in which it changed course more rapidly or more extremely than economic class. The Warren Court was one of the most powerful forces in American history for lifting up the poor. Poor people had always been seen through demeaning stereotypes—as lazy, immoral, dangerous, or biologically deficient—and they had often been victims of severe discrimination. There were, at various times, laws that allowed poor people to be consigned to poorhouses and laws making it a crime to transport a poor person over state lines.
These attitudes changed in the 1960s, when an increasingly affluent nation began to see the poor in a new light, and its leaders declared a “war on poverty.” The Warren Court played a pivotal role in this new approach to the poor, interpreting the Constitution in ways that greatly expanded their rights. The Court significantly advanced poor people’s political rights when it held that the poll tax was unconstitutional. Four years later, it greatly increased their economic rights when it ruled that welfare recipients were entitled to a hearing before their benefits were cut off.
The Warren Court also championed the middle class. Under Warren’s leadership, the same Court that in the Progressive Era had reflexively sided with employers took an expansive view of the rights of working men and women. It defended their right to join unions and bargain collectively, and it showed a new understanding of the difficult lives they led. In one important case, the Court struck down a state wage garnishment law that made it too easy for creditors to seize workers’ salaries. In its opinion, the Court underscored that the law “may impose tremendous hardship on wage earners with families to support.”
For all of the progress poor people made in the Warren era, poverty lawyers still had a long list of rights they were hoping to win. There was a large and outspoken welfare rights movement that was calling for fairer rules, more privacy, and increased benefits for welfare recipients. Advocates for poor children were starting to focus on school finance, arguing that the Court should hold that all school districts in a state, whether rich or poor, should have equal levels of funding.
Most weighty of all was the question of whether poor people as a group should have special constitutional protection. Poverty lawyers argued that the poor deserved that status under the Equal Protection Clause of the Fourteenth Amendment, which was added after the Civil War to protect the rights of freed slaves and had become the main constitutional provision protecting equality for all Americans. The Court had developed an elaborate model that gave extra protections to groups it considered the most discriminated against and the least able to protect themselves through the political process. When a law imposed particular burdens on one of these “suspect classes,” the Court applied “strict scrutiny”—or some other heightened level of review—and it was more likely to strike the law down. The Court had recognized racial and religious minorities as suspect classes, and advocates for the poor argued that poor people should also be recognized as a suspect class. In a number of rulings, the Warren Court came close to doing so.
When the Warren era ended, the Court quickly put a stop to the line of cases expanding the rights of the poor. The post-1969 Court changed direction almost immediately in welfare law cases, with a landmark decision rejecting a poor family’s constitutional challenge to a cap on welfare benefits that pushed them far below the poverty level. It declared that the “intractable” problems presented by welfare programs “are not the business of this Court.” It also decided that the poor would not be a suspect class.
Over the next few years, the Court ruled against the poor in other important cases, two of which were particularly pivotal. In 1973, it came within one vote of requiring all fifty states to equalize funding between rich and poor school districts. A year later, it was one vote away from requiring states to provide all children with a racially integrated education, even if it meant transporting students across the lines separating urban and suburban school districts. If Nixon had not driven Fortas off the Court, the plaintiff schoolchildren would almost certainly have prevailed in both of these cases—and poor and minority children would have far greater educational opportunity today.
The post-1969 Court has also reduced the rights of the middle class. It has eroded the rights of workers to bring lawsuits against their employers, whether for discrimination or wage theft. It has scaled back the rights of unions, most seriously in 2018, when it ruled that government workers in unionized work sites do not need to pay union dues or alternative fees to compensate the union for representing them. That decision is likely to greatly weaken public-sector unions, making them less able to defend workers.
The Court has also systematically diminished the political rights of lower-income Americans. It struck down a key part of the Voting Rights Act, one of the most important laws ever enacted to ensure that all Americans can participate in democracy on an equal basis. It upheld strict voter ID laws, which reduce the turnout of poor and minority voters, and strict voter roll purges.
The Court has also reduced the rights of criminal defendants, with poor and working-class people, and racial minorities in particular, bearing the brunt of the changes. Its rulings have made it easier for the government to win convictions and impose longer prison sentences. These decisions have contributed to making the United States’ incarceration rate the highest in the world.
At the same time as it has reduced the rights of those at the bottom, the post-1969 Court has recognized important new rights for those at the top. The biggest freedom it gave the wealthy was the ability to use their money in unlimited amounts to support candidates for office, by equating money with speech. In recent years the Court has gone further and declared that corporations have the right to spend unlimited amounts of money to elect candidates to office. As a result of these rulings, wealthy individuals and corporations have an outsized influence on which candidates win elections—and on government policy.
The Court has expanded the rights of corporations in other areas, championing them in much the same way that the Warren Court showed special concern for the poor. It gave corporations new protections against being sued in class actions by their employees and customers. It also imposed limits on punitive damages when corporations harmed people, whether by selling defective products or polluting their land.
There is strong statistical evidence that the Court began a major pro-corporate transformation after the Warren Court ended. One study, conducted by two law professors and a federal judge, found that after the four Nixon justices arrived, the Court began to rule in favor of corporations more frequently and that its pro-business tilt has increased even more in recent years. The Burger and Rehnquist Courts were significantly more favorable to corporations than the Warren Court, the study found, and the Roberts Court even more so. A New York Times analysis, which reached similar conclusions, ran under the headline “Supreme Court Inc.”
The past fifty years of conservative rulings from the Supreme Court have coincided almost exactly with a period in which economic inequality in the United States has soared to near-historic levels. The Center on Budget and Policy Priorities, a leading expert on inequality, has observed that “the era of shared prosperity” in the United States “ended in the 1970s” and that since then there has been a sharp divergence between the wealthy and everyone else. By 2014, the top 1 percent earned more than 20 percent of all income in the United States, while the bottom 50 percent earned just 12.5 percent. The wealth gap that year was even larger. The richest 0.1 percent of families—just 160,000 families—owned about as much as the bottom 90 percent of Americans.
Many factors have contributed to this growing inequality, including some that are larger than any single country, such as globalization and job-destroying automation. There can be little doubt, however, that a major reason for our soaring income inequality is the choices that government has made over the past half century. According to Joseph Stiglitz, the Nobel Prize–winning Columbia University economist, “government policies have been central to the creation of inequality in the United States.” To “reverse these trends in inequality,” he said, “we will have to reverse some of the policies that have helped make America the most economically divided developed country.”
The government choices that are most often associated with rising inequality are the ones made by presidents and Congress. The increase in wealth at the top is generally attributed to policies like the tax cuts for the rich championed by President George W. Bush and President Trump. The declines at the bottom are often said to be a result of policies like the welfare reform law of 1996, promoted by House Speaker Newt Gingrich and signed by President Bill Clinton, which ended “welfare as we have come to know it.” The Supreme Court is rarely included in these analyses, even though it has been one of the most powerful drivers of income inequality over the past half century.
Many of the forces that are widening the gap between rich and poor—and leaving the middle class not far ahead of the poor—can be directly tied to choices made by the Court. The World Inequality Report 2018, which was prepared by Thomas Piketty and other economists, concluded that the income-inequality trajectory of the United States is largely due to two factors: “massive educational inequalities” and “a tax system that grew less progressive.” The post-1969 Court has been a major contributor to each of these problems. When the Court refused to equalize funding between rich and poor school districts or to order racial integration across school district lines, it made extreme educational inequality inevitable. The Court’s campaign finance decisions, which have given wealthy individuals and large corporations highly disproportionate influence over elections and government, are a major reason tax policy is so slanted in favor of the rich.
The Court has made many other choices that have increased economic inequality. By weakening labor unions, it has driven down workers’ wages and benefits and allowed more corporate money to flow to top executives and shareholders. By making it harder to sue corporations, it has made the victims of corporate malfeasance poorer while expanding corporate profits. The Court’s criminal law decisions, which have increased incarceration rates, have had a devastating economic impact on poor and working-class communities.
The Court has also contributed to the dismantling of the social safety net. One of the first ways in which the Court changed direction after the Warren Court ended was by abandoning welfare recipients. The Court gave a green light to the states to reduce welfare benefits as much as they wanted, or even to eliminate them entirely.
The nation’s growing inequality hurts Americans on many levels. The media has extensively covered the “hollowing out” of the middle class, whose members are increasingly being pushed into poverty or near poverty. A Federal Reserve Board study in 2018 found that 40 percent of Americans could not come up with $400 in an emergency. Inequality is not only killing off the middle class—in some cases it is literally killing it. Life expectancy in the United States declined between 2014 and 2017, the longest such sustained decline since 1915 to 1918, a period that included a flu pandemic and World War I. American life expectancy is also declining relative to other nations—in 2018, the United States fell from forty-third place to sixty-fourth place globally. Public health experts connect these declines to “deaths of despair,” including opioid-related fatalities and suicide, among working-class Americans.
The state of poor Americans is even worse. The nation is far wealthier than it was fifty years ago, but poverty has remained stubbornly persistent. In 1969, when the Nixon Court began forming, the poverty rate was 12.2 percent. In 2017, it was 12.3 percent. In a nation of more than 300 million, that means that tens of millions of Americans are still barely managing to survive. An estimated one in eight Americans is “food insecure,” meaning they lack the funds for consistent access to sufficient food. That translates into more than forty million people, including more than twelve million children.
While the poor and the middle class are hurt most by increasing economic inequality, these trends hurt all Americans—because they threaten America itself. Extreme inequality puts democracy at risk: the concentration of wealth in the top 1 percent—and, to a striking degree, the top 0.1 percent—is pushing the nation toward plutocracy. Political scientists have long said that a healthy middle class is critical to warding off tyranny. In the sociologist Barrington Moore’s classic formulation, “no bourgeoisie, no democracy.” Legal scholars have observed that America’s foundational document was drafted for a society with a strong middle class. “To function properly, the Constitution requires equality and solidarity,” cautions Vanderbilt law professor Ganesh Sitaraman, author of The Crisis of the Middle-Class Constitution. “Once those are gone, it contains no mechanism to restore them.”
Increased inequality also strikes at a fundamental aspect of America’s identity. The United States has always seen itself as a nation where hard work and talent lead to success, and where each generation can expect to be better off than the last. That promise of upward mobility is unraveling as a growing share of the nation’s wealth is arrogated by a small number of very wealthy people at the top. A study by a group of Harvard, Stanford, and University of California–Berkeley professors found that only half of thirty-year-olds born in 1984 earned more than their parents did at their age, holding inflation constant, compared to 92 percent of thirty-year-olds born in 1940. “Economic growth that is spread more broadly across the income distribution,” the professors concluded, is necessary for “reviving the ‘American Dream.’”
Five decades after Earl Warren visited Lyndon Johnson at the White House in an attempt to protect the Court from Nixon, that battle is ancient history—and Nixon won. The Warren Court’s mission of uplifting the poor and the weak, and of building a more equal and inclusive society, has not only been stopped—it has been sharply reversed. The post-1969 Court has been working unrelentingly to protect the wealthy and powerful, and to make the nation more hierarchical and exclusionary—and it has been succeeding. When it comes to the law, and its many consequences for society, we are all living in Nixon’s America now.