CHAPTER ◆ 2
Turning Against the Poor
It did not take long for the dismantling of the Warren Court’s approach to the poor to begin. Just two weeks after Goldberg v. Kelly, the landmark ruling recognizing a right to a hearing before welfare benefits were cut off, the Court decided another welfare case. In Dandridge v. Williams, a welfare recipient was seeking more than just the procedural rights the Court had recognized in Goldberg. She was asking the Court to hold that the amount of benefits her family received was unconstitutionally low. Poverty lawyers hoped Dandridge would be the case in which the Court finally began to recognize substantive economic rights. It was, instead, the case in which the Court began to turn against poor people.
Linda Williams, the lead plaintiff, was a single mother in Baltimore with a medical condition, whose husband had deserted her and their eight children. The family received AFDC benefits, but their benefits had been reduced sharply. Maryland had lowered its AFDC spending as part of an overall reduction in the state budget. Rather than cut benefits equally for all recipients, the state adopted a “maximum grant” rule that capped every family at $250 a month, regardless of how many children it had. The cap meant that small families received the same amount as before, while larger ones, like the Williams family, saw their checks shrink significantly.
Even before the cuts, Maryland’s AFDC benefits were woefully inadequate. AFDC was created by the Social Security Act of 1935 to help children of widows, but over time it had become the nation’s main program supporting the poor. AFDC was a federal-state partnership, in which the federal government set many of the ground rules but the states were allowed to set their own benefit levels. The federal government had recently established an official poverty level, which was deliberately set extremely low—the woman who created it conceded that it was “a level at which a nutritionally good diet, though possible, is hard to achieve.” States were free to set their AFDC benefits below this already low federal poverty level, and they did. Nationally, the average AFDC benefits for a family of four in 1970 were $2,652 a year, just 66 percent of the poverty level.
More than one-third of the states had maximum grant rules, which made their already inadequate benefits particularly punitive for large families. The Williams family had initially received $3,553.80 a year, or 68 percent of the poverty level for a family of its size. When Maryland adopted its maximum grant rule, the Williams family’s benefits fell to less than 58 percent of the poverty level, or a little more than half of the level at which federal poverty experts said good nutrition was “hard to achieve.”
In February 1968, the Baltimore Legal Aid Bureau brought a class action challenge to Maryland’s maximum grant rule, with Williams as the lead plaintiff. The bureau’s lawyers argued that capping benefits for large families violated the Equal Protection Clause, because children in large families received less in AFDC benefits than children in small ones. The lawyers also said that Maryland was violating the Social Security Act, which required states in the AFDC program to provide aid to “all eligible individuals.” The maximum grant cap, they said, meant that the younger children in large families were not receiving benefits at all.
Welfare lawyers had long wanted to take a challenge to maximum grant rules to the Supreme Court. When Sparer published an article listing the top ten issues that needed “social welfare law testing,” he put maximum grant caps at number four. Sparer and other national poverty law litigators would have preferred, however, to bring the Court a case from the South. Family caps in southern states were considerably lower than those in the North, and it was not hard to find racist motives behind them. Advocates for the poor hoped the Court would hear a challenge from Mississippi, where the average monthly AFDC payment per recipient was $8.50, or Louisiana, where Senator Russell Long compared welfare mothers to “broodmares.” The poverty law movement, however, had no centralized mechanism for deciding which cases would go up to the Court, something the civil rights movement did a better job of, and the Baltimore Legal Aid Bureau got there first.
There was a great deal riding on Dandridge. It had the potential to resolve more than just an important issue about benefit levels. It could also show that the Court cared not only about how welfare programs were administered, but about how much they paid in benefits. Even if the Court did not recognize a right to subsistence, the case gave it a chance to signal that it was troubled by the extremely low benefit levels many welfare families were forced to live on.
The Court that would decide Williams’s case was far less favorable than the one that existed when it was filed. When Williams first challenged Maryland’s maximum grant rule, Warren was the chief justice and Fortas was still on the Court, and it was not hard to imagine that the Warren Court’s liberal majority would use the case to significantly expand the rights of welfare recipients. When the case was argued, in December 1969, with Burger presiding over a more conservative eight-justice Court, that prospect seemed less likely.
There were, however, ways the Court could rule for Williams narrowly that would get rid of the maximum cap without elevating poor people or welfare in constitutional law. It could apply simple “rational basis” review, the kind of review it gave to laws where no suspect class or fundamental interest was involved, and still strike down the maximum grant cap. Even under rational-basis review, the state had to show that it had rational reasons for acting as it had, related to legitimate government interests, and it was not clear how anyone gained by focusing the state’s budget cuts on large families rather than spreading them across all welfare recipients. The Court could also avoid the constitutional questions and simply hold that the cap violated the Social Security Act’s requirement that aid must be given “to all eligible individuals.” That would have been similar to the cautious approach the Court took in King v. Smith, striking down the man-in-the-house rule based on its interpretation of “parental support” under the AFDC statute.
On April 6, 1970, the Court ruled against Williams by a 5–3 vote. The Dandridge majority was made up of the three Goldberg dissenters—Burger, Stewart, and Black—and Harlan and White, who had been in the Goldberg majority. On this new Burger Court, Harlan and White were in the center, and they showed it in this pair of welfare law cases, deciding that John Kelly would win his lawsuit and Linda Williams would lose hers.
The Dandridge decision was written by Stewart, a scion of the upper classes, whose path in life could hardly have been more different from that of Williams, the abandoned single mother of eight with serious health issues, living on welfare. Stewart grew up in a prominent Republican family in Cincinnati, where his father was mayor before serving on the Ohio Supreme Court. He described his Michigan-born mother, whose own father and grandfather were presidents of that state’s oldest bank, as “kind of a small-town rich girl.” Stewart attended Hotchkiss, the old-money Connecticut prep school; Yale College, where he was a member of the elite Skull and Bones secret society; Yale Law School; and Cambridge University. He practiced at white-shoe law firms and became a federal appeals court judge before he turned forty.
Stewart dispensed with Williams’s equal protection claims tersely. He acknowledged that the case involved “the most basic economic needs of impoverished human beings,” but he could “find no basis for applying” a heightened level of scrutiny. The maximum grant rule, he insisted, was nothing more than a “state regulation in the social and economic field.” Therefore, he said, it should be subjected to mere rational-basis review.
Applying that lenient standard, Stewart said Maryland’s rule had to be upheld. Even if it disadvantaged large families, he wrote, a classification is not unconstitutional merely because it was “not made with mathematical nicety or because in practice it results in some inequality.” Maryland had adopted the rule to reduce costs, Stewart said, and it was within its rights to do so, even if it could have spread the cuts more evenly. “The problems of government are practical ones,” he wrote, “and may justify, if they do not require, rough accommodations.”
Stewart also rejected Williams’s Social Security Act claim. He insisted that younger children in large families were not denied benefits in violation of the “all eligible individuals” requirement. As Stewart saw it, “a more realistic view is that the lot of the entire family is diminished,” and he insisted that the act allowed states to make that kind of reduction.
Stewart went on to make a larger statement about government help for the poor that was sharply at odds with its recent sympathetic words in Goldberg. The Court did not care if it was “wise” to make a large family live on what a smaller family did, he said, or whether “a more just and humane system could . . . be devised.” Using language that signaled a new hostility to welfare cases, Stewart declared that “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.”
In dissent, Marshall, who as a lawyer represented people like Linda Williams, made an impassioned case for the Williams family. He argued that applying mere rational-basis review in this case constituted “emasculation of the Equal Protection Clause.” It was wrong, he insisted, to apply a standard for a “gas company or an optical dispenser” to a claim “involving the literally vital interests of a powerless minority—poor families without breadwinners.” Marshall said that Maryland had not sufficiently justified a rule that, for Williams and the class she represented, constituted “the denial of even a subsistence existence.”
The contrast between Dandridge and Goldberg was striking: welfare recipients’ greatest victory and greatest defeat in the Court had come just two weeks apart. The main reason for the different outcomes was no doubt what the plaintiffs were seeking. Kelly wanted only a hearing at which he could make the case for keeping his benefits, an easy thing for a court to order. Williams wanted her welfare benefits increased, the sort of financial decision courts are less comfortable making. Courts do issue rulings that affect government budgets, including Gideon v. Wainwright, which required cities and counties to provide lawyers to poor defendants. They are wary, however, of remedies that appear to be flatly redistributionist. Stewart alluded to this discomfort in his Dandridge opinion. “The Constitution may impose certain procedural safeguards upon systems of welfare administration,” he wrote, citing Goldberg, but it “does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”
Beyond the jurisprudential reasons for the Court’s ruling in Dandridge, there was also one relating to personnel: Johnson’s failure to fill Warren’s seat. If he had selected a more easily confirmed nominee, there could have been a liberal chief justice instead of Burger. At the same time, if Fortas had not been weakened by his Senate rejection, Life magazine might not have investigated him, or he might have been able to survive the Nixon administration’s onslaught. In that alternative version of history, there would almost certainly have been five justices on Williams’s side: the new chief justice, Fortas, Brennan, Marshall, and Douglas. That Court might have struck down the maximum grant cap on narrow grounds, but it also might have been bolder, holding that poor people or welfare benefits had special constitutional status.
Dandridge’s direct impact was significant, and it reached well beyond Maryland. The Court had given its approval to maximum grant caps that existed in more than one-third of the states, some with benefit levels that were well below Maryland’s. As a result of the decision, many children in large families throughout the country grew up further below the poverty line than they otherwise would have.
Dandridge’s deeper implications, however, went beyond maximum grant rules. The decision was an unmistakable turning point for poor people in American law. For decades, going back to Jacobus tenBroek’s early writings, there had been a movement calling for special constitutional protection for the poor. The idea had gained traction with scholars like Charles Reich, Edward Sparer, and Frank Michelman and with a growing army of poverty lawyers who were working to devise new legal doctrines. In recent years, with its holdings and language, the Court had been starting to elevate the rights of the poor to a new level.
With Dandridge, however, it became clear that Goldberg would be the high-water mark for the poor in American law, at least for some time. After all of the talk about whether the poor as a class should receive heightened scrutiny, the Court had now made clear that they would not. Rather than recognizing welfare as a fundamental interest deserving of a higher level of review, the Court said just the opposite. The problems of welfare programs were “intractable,” it insisted, and “not the business of this Court.”
It would be hard to devise a more thorough rebuke to the ideals of the poverty law movement. Dandridge represented, as one scholar put it, the “deconstitutionalization” of poverty law. The following year, in another case involving the poor, Marshall described the new reality with an air of resignation. The Court had decided, he said, that laws that harmed poor people would receive “no scrutiny whatsoever.” Sparer was crestfallen by the Dandridge ruling. If the Court had been willing to use the Equal Protection Clause more forcefully on behalf of the poor, he said, it “could have led to a different America.”
After making Burger chief justice, Nixon had a second seat to fill, Fortas’s, and he was eager to nominate a southerner. A key part of his presidential campaign had been his “Southern strategy,” a blatantly racial appeal to white voters in the South. He hoped to use his next nomination to continue to stoke the politics of regional resentment. There was one southerner on the Court at the time, Alabama-born Hugo Black, but he had been in the majority in Brown v. Board of Education and supported later civil rights rulings. Nixon was looking to nominate a white southerner with an anti-civil-rights record—as Ehrlichman said, “a bona fide son of the Old South.”
In August 1969, Nixon nominated Clement F. Haynsworth Jr., a judge on the Richmond, Virginia–based U.S. Court of Appeals for the Fourth Circuit who had unimpeachable southern credentials. Haynsworth, a native of Greenville, South Carolina, had spent his legal career representing textile mills and other monied interests. Rehnquist, the assistant attorney general who approved of prosecuting Fortas, got right to the point in an internal memorandum, vouching that Haynsworth “will not be favorably inclined toward claims of . . . civil rights plaintiffs.”
There was opposition to Haynsworth in the Senate for his anti-civil-rights views and anti-labor rulings, and for his decision to preside over a case in which he had a financial interest. Democratic senators spoke against him, prodded by civil rights groups and unions and by lingering bad feelings over how the Senate had treated Fortas. Thinking the confirmation vote would be close, Nixon sent Vice President Spiro Agnew to the Senate in case he was needed to break a tie, but Haynsworth was rejected, 55–45.
Stung by the defeat, Nixon doubled down. He told an aide to “find a good federal judge further south and further to the right.” His next choice, G. Harrold Carswell of the New Orleans–based U.S. Court of Appeals for the Fifth Circuit, met both criteria. Carswell, who was born in Georgia and lived in Florida, was even more steeped in Confederate values than Haynsworth. His family’s plantation had been burned down in the Civil War when General William Tecumseh Sherman pillaged his way across Georgia. As a legislative candidate in 1948, Carswell declared that he yielded to no one in his “firm, vigorous belief in the principles of white supremacy.” While Carswell’s Confederate credentials were in order, his legal qualifications were weak. As a judge, he had an extraordinarily high reversal rate, and one commentator said his judicial opinions read “like plumbers’ manuals.” Carswell’s unworthiness was underscored by the argument Senator Roman Hruska, a Nebraska Republican, made on his behalf. “There are a lot of mediocre judges and people and lawyers,” Hruska said. “They are entitled to a little representation, aren’t they?” Carswell was rejected by a 51–45 vote.
After his impressive success in getting Fortas off the Court and Burger on, Nixon’s two failed nominations were painful setbacks. Time’s cover declared, “The Carswell Defeat—Nixon’s Embattled White House,” and Nixon’s poll ratings fell. Nixon tried to exploit the defeats for his Southern strategy, insisting that Haynsworth and Carswell had been treated unfairly because “they had the misfortune of being born in the South.” He was being forced, he said, to look outside the region for his next nominee.
Nixon turned next to Minnesotan Harry Blackmun, a judge on the St. Louis–based U.S. Court of Appeals for the Eighth Circuit, who was an old friend of Burger’s. The two had attended the same St. Paul elementary school, and Blackmun was best man at the chief justice’s wedding. Rehnquist reviewed Blackmun’s record to ensure that he was sufficiently conservative. Top Justice Department lawyers questioned him in person, including about whether any of his three daughters, who were all in their twenties, were hippies—an interview Blackmun and his daughters passed.
The Senate was as exhausted from the last two nominations as Nixon was. There was little opposition to, or even curiosity about, Blackmun. After hearings marked by mild questioning, at which he insisted that he would not hesitate to vote differently than Burger, on May 12, 1970, Blackmun was confirmed by a 94–0 vote. Despite his protestations, when Blackmun first joined the Court, he was so close to Burger that the two justices were dubbed the “Minnesota Twins.” The replacement of Fortas with Blackmun was another major step in the dismantling of the Warren Court.
Nixon, still intent on creating a conservative Court, turned next to two more liberal justices he thought could be driven off. One was Brennan, who represented everything Nixon opposed. The public attacks on Brennan began on May 15, 1969, the day after Fortas resigned. John Rarick, a segregationist Louisiana congressman, denounced Brennan for participating in an investment partnership with other judges and a real estate developer. He urged his colleagues not to be “pacified by the departure of one—Abe Fortas—while there remain in the federal judiciary others with similar interests damaging the solemnity of the judiciary.” Rarick inserted purportedly incriminating documents into the Congressional Record.
The attacks lacked substance, but Brennan took them seriously. He liquidated all of his holdings, including AT&T stock his mother had left him. Brennan also withdrew from all outside activities, including teaching a seminar at New York University and serving on Harvard Law School’s Visiting Committee. There was little left for his critics to complain about, and the attacks soon stopped.
Nixon’s other target was Douglas, who was more vulnerable. The most liberal justice, Douglas was an iconoclast in law and life. At age seventy, he was married to his fourth wife, Cathy, a twenty-five-year-old law student—a union that attracted attention in legal circles and beyond. In his three decades on the Court, Douglas had sided with society’s most marginalized members and staked out controversial positions. With the nation bitterly divided over Vietnam, he had been the only dissenter in United States v. O’Brien, a 1968 ruling upholding a young man’s conviction for burning his draft card. In his dissent, Douglas went beyond the facts of the case to question whether, in the absence of a formal declaration of war, the draft itself was legal. Douglas, who was a committed environmentalist, later wrote a highly unconventional dissent arguing that trees and rivers should have legal standing to sue to protect themselves.
Nixon began his anti-Douglas campaign as soon as he took office. Within five days of his inauguration, the Internal Revenue Service was reportedly auditing Douglas’s tax returns. The FBI investigated Douglas’s ties to Albert Parvin, a Las Vegas casino magnate, on whose foundation board he served. Ehrlichman had a former New York police detective look for negative information on Douglas. FBI director J. Edgar Hoover, who was wiretapping Douglas’s telephone, sent reports on the justice’s phone calls directly to the White House.
While law enforcement worked behind the scenes, Nixon dispatched prominent people to attack Douglas publicly. Vice President Agnew, appearing on CBS News on April 9, 1970, said Douglas threatened national security. Ehrlichman told House minority leader Gerald Ford to lead an impeachment drive. The following week, Ford called for Douglas’s impeachment in an impassioned speech on the House floor. He attacked Douglas for his ties to Parvin, who he said was in league with Mafia figures Bugsy Siegel and Meyer Lansky. Ford also called Douglas a radical, insisting that his book Points of Rebellion advocated revolution. Ford held up an issue of Evergreen Review, a magazine that had excerpted Douglas’s book, and declared that it contained “perverted” and “downright filthy” content.
The campaign against Douglas did not go as Nixon had hoped. The Detroit Free Press said it would take Ford’s claims more seriously if it “had greater faith in his objectivity.” The New York Times editorialized that Nixon and Ford’s “squalid campaign” threatened “the integrity and the independence of the Supreme Court.” Ford was unable to generate enough support in the Democratic-controlled House to move forward with impeachment, and Douglas remained on the Court, with what John Dean called an “intractable resolve.”
When the Brennan and Douglas campaigns failed, Nixon shifted to “easier ways,” in Ehrlichman’s words, of creating a conservative majority. He became intensely interested in the health of the justices, particularly Douglas, Black, Harlan, and Marshall, all of whom had medical issues. In private meetings, Nixon pressed Burger for updates on his colleagues’ medical conditions. Nixon took comfort in the advanced ages of the liberal justices and in the notes Burger sent him suggesting possible health setbacks that could lead to new vacancies.
There was nothing subtle about Nixon’s inquiries. Marshall, for one, understood that his health was a matter of intense interest to the president. When Marshall checked into the Bethesda Naval Hospital with pneumonia, Nixon asked for a status report. Marshall told a Navy officer, “Well, Admiral, you have my permission to give it to him only on one condition: that you put at the bottom of it, quote, ‘Not yet.’”
The Supreme Court is a new Court with each new justice who arrives. The arrival of two justices, including a new chief justice, was even more transformative. Burger and Blackmun started to shift the Court rightward, and in no area was that clearer than in cases involving poor people. Two of the greatest champions of the poor were gone, replaced by justices with very different outlooks. The first majority opinion Blackmun wrote for the Court was in a welfare case, and his and Burger’s votes turned a decision that two years earlier would almost certainly have been a win for welfare families into a defeat.
Wyman v. James was a challenge to a New York law that allowed welfare caseworkers to inspect welfare recipients’ homes on a regular basis and terminate the benefits of anyone who refused. Barbara James, a single mother in New York City who received AFDC benefits, attended meetings of a welfare rights organization and heard other mothers speak out against home visits. They did not want caseworkers rifling through their belongings and, as they said, “counting toothbrushes to see if there was a man in the house.” James went to a neighborhood Mobilization for Youth legal office and told a lawyer that the city was insisting on a home visit before recertifying her and her two-year-old son, Maurice, for AFDC. James refused to allow her caseworker to make a home visit, but she made it clear that she would provide any information the city wanted. The city cut off James’s benefits and the lawyer she spoke to filed a lawsuit on her behalf.
Welfare recipients and poverty lawyers had long objected to welfare programs that invaded recipients’ homes. Sparer’s welfare recipients’ bill of rights in the UCLA Law Review called for protection against improper searches. James’s lawsuit, which was filed as a class action, included affidavits from other AFDC recipients describing the impact of home visits, which were often conducted without notice. “It’s very embarrassing to me if the caseworker comes when I have company,” one welfare recipient said. The plaintiffs cooperated even when caseworkers questioned their guests or their children, because, as one said, “I cannot afford to have my caseworker angry at me because I am so dependent on him.”
James’s lawyers charged that the home visit law violated the Fourth Amendment. They argued that if welfare caseworkers did not have consent to enter a home, they should be required to get search warrants. The lawyers invoked a recent Supreme Court decision holding that inspectors were not allowed to conduct health and safety inspections in commercial properties without warrants. A three-judge federal district court that heard the case held that the home visits were unconstitutional.
On January 12, 1971, the Court ruled against James by a 6–3 vote. Nixon’s two nominees, Burger and Blackmun, provided two of the votes to uphold warrantless home visits. Blackmun, in his majority opinion, said that home visits were not searches under the Fourth Amendment because they were not part of a criminal investigation. He also said they were conducted with consent, since welfare recipients were always free to refuse. If they did refuse, they were not criminally sanctioned, Blackmun said; their AFDC “merely ceases”—a flippant way to describe a family’s loss of the money it depended on for food and shelter. In his first majority opinion, Blackmun came through strongly for Nixon and “demonstrated,” as one news account noted, “that not all conservative jurists speak with a Southern accent.”
Marshall, in dissent, pointed out the disturbing contrast between the Court’s ruling and its recent decision holding that business owners had the right to turn away inspectors who did not have search warrants. In this case, he said, the Court was refusing to extend that same right to the “lowly poor” in their own homes. Marshall saw an ominous shift occurring. In the past, he said, the Court had “occasionally pushed beyond established constitutional contours to protect the vulnerable and to further basic human values.” Now, with the steadily forming conservative majority, the Court was pushing the law not to protect vulnerable people like James but to take their rights away.
Even after Dandridge v. Williams, many advocates for the poor were not expecting to lose the James case. Barbara James was not asking for increased welfare benefits, as Linda Williams had been in Dandridge. She was only seeking basic procedural protections before welfare officials exerted authority over her, as John Kelly had been granted in Goldberg v. Kelly. A large part of the reason James lost where Kelly had prevailed, clearly, was the new composition of the Court. Warren and Fortas would almost certainly have voted in favor of James. Another part of the explanation was that the Court was simply turning against the poor.
On April 26, the Court handed poor people another defeat, in a new area: affordable housing. James v. Valtierra was a challenge to a provision of the California Constitution that prohibited the building of new public housing unless the voters in the surrounding community approved. The provision, Article 34, had been added to the constitution by referendum in 1950, with support from the California Real Estate Association.
The case arose out of fights over public housing in San Jose and nearby San Mateo County. Both the city and the county had long public housing waiting lists in 1968, and they wanted to apply for federal funds to build new housing. There was, however, strong community resistance. One San Jose city councilwoman declared that poor people can “drag the whole neighborhood down,” bringing “piles of garbage” and “undisciplined children.” The communities voted, as Article 34 required, and they rejected the proposed housing. Poor people eligible for public housing sued, arguing that Article 34 violated their rights under the Equal Protection Clause.
A three-judge district court ruled for the poor people, striking down Article 34. It relied on a recent case in which the Supreme Court had invalidated a voter-enacted amendment to Akron, Ohio’s city charter. That amendment had required city laws that prohibited racial discrimination in housing to be approved by the voters. The Supreme Court said that imposing a higher threshold to enact laws aimed at racial discrimination violated the Equal Protection Clause. By the same logic, the district court said, Article 34 was unconstitutional because of the extra barrier it imposed to building housing for the poor.
The Supreme Court reversed the district court by a 5–3 vote and upheld Article 34. Black, writing for the majority, said the Akron case did not apply because it was about discrimination on the basis of race, not poverty. Requiring voter approval to let racial minorities into a community violated the Equal Protection Clause, he said, but requiring voter approval to let poor people in did not.
In dissent, Marshall argued that Article 34 should be struck down because it relied on “an explicit classification on the basis of poverty.” Just a few years earlier, a majority of the Court might have seen the case the way Marshall did. That Court was striking down fees to appeal criminal convictions and the poll tax and comparing discrimination against the poor to racial discrimination. All of those opinions, however, came before May 14, 1969, when Fortas resigned.
Valtierra proved to be a serious setback to affordable housing in California. In the years since it was decided, Article 34 has reduced the supply of housing for poor people in a state where it is in short supply, and it has reinforced economic and racial segregation across the nation. Matthew Lassiter, a University of Michigan history professor, called Valtierra “one of the most important defeats in civil rights history in the last century,” one that is “under-appreciated in how much it contributed to the stoppage of efforts to integrate communities across the country.”
On September 17, 1971, Nixon finally got the news he was waiting for. Black, who had been hospitalized since August, announced his retirement. Two days later he suffered a stroke, and later in the week he died. Black had drifted to the right over the years in many areas, including in cases involving the poor. He had, however, spent most of his career as one of the Court’s great liberals, and that reputation persisted. John Dean said Black was “the epitome of a justice that Richard Nixon abhorred” and that Nixon was excited about replacing him.
As the White House prepared to replace Black, Nixon received more good news. Harlan, who was just seventy-two, had spinal cancer and did not have long to live. He waited to make his resignation public until September 23 so as not to upstage Black’s announcement, but Burger informed Nixon confidentially. For much of the Warren Court, Harlan had been the most conservative justice, but he had become more liberal as Black became more conservative. In Goldberg v. Kelly, it was Harlan, not Black, who had provided the crucial fifth vote. The news that Harlan had late-stage cancer that would force him off the Court, Ehrlichman said, left Nixon “elated.”
Suddenly, the conservative majority Nixon dreamed of was in sight. The Court was down to seven justices, with only three solid liberals left from the Warren era: Douglas, Brennan, and Marshall. There were two centrist conservatives, White and Stewart. If Nixon filled the two vacancies with conservatives, his four justices would form a powerful bloc. They would only need to attract Stewart or White to build a majority.
Nixon was more eager than ever to name a southerner, particularly after the departure of Black, the Court’s only southern-born member. The first name he sent the American Bar Association to review was Virginia congressman Richard Poff, who had lobbied heavily for the position. Poff had, however, signed the “Southern Manifesto,” a statement that 101 southern senators and representatives had placed in the Congressional Record in March 1956, declaring Brown v. Board of Education “contrary to the Constitution” and calling for the use of all “lawful means” to overturn it. He had also consistently voted against civil rights bills. Poff’s supporters argued that if he had done anything differently he would have lost his seat in Congress. Still, his outright support for racial segregation caused considerable opposition to form against his nomination, and he withdrew.
Nixon eventually found his southerner. In a televised address on October 21, he announced that he would nominate Lewis F. Powell Jr., a corporate lawyer from Richmond, Virginia, to one of the vacancies—and William Rehnquist to the other. Powell, a former president of the American Bar Association, did not have the kind of inflammatory racial record that Nixon’s previous two southern nominees had, and he had some moderate credentials, including having been a prominent supporter of legal services programs.
The media accepted the White House’s portrayal of Powell as a courtly moderate. “In manners and polish, Mr. Powell fits comfortably into the image of the antebellum South,” The New York Times reported. “But in the moderation of his ideas and his approach to integration, he appears to belong more to what has been called ‘the new South.’” The paper presented Powell’s service as chairman of the Richmond School Board in the post-Brown period positively, saying that “he quietly admitted Negroes to white schools in 1959.”
In fact, Powell, who traced his family back to the first settlers at Jamestown, had connections to the Old South that went well beyond “manners and polish.” He grew up in Jim Crow Richmond attending all-white schools and churches. As an adult, he lived in a world that had changed little. Powell was a member of private clubs that did not admit blacks, and there were reports that his law firm, which had no black lawyers, had a policy of not hiring any. Whether that was true or not, it seemed clear that, as one of his former law clerks observed, Powell had “never met a black as equal.”
Powell, who knew his own record better than The New York Times did, told the White House that “there will be plenty of black leaders who will think that I was not active enough in [promoting] integration in Virginia.” Powell had given them good reason for that belief. When Brown v. Board of Education was decided, Powell opposed it as being wrong on the law and bad as policy. “I am not in favor of, and will never favor compulsory integration,” he wrote at the time in a letter. As school board chairman, Powell was in no rush to desegregate Richmond’s schools. When he resigned as chairman, in 1961, only two of Richmond’s 23,000 black students went to school with whites.
Black leaders insisted that Powell’s record should disqualify him. The all-black Old Dominion Bar Association said Powell had “consistently voted to resist or ignore the decisions of the Supreme Court requiring racial integration of public schools.” Representative John Conyers Jr., speaking for the Congressional Black Caucus, opposed the nomination, saying Powell’s lack of support for desegregation when he was head of the school board had “offended the constitutional rights of the black schoolchildren who were entrapped by Powell’s policy decisions.”
While Powell did little for civil rights, he strongly championed big business. In his law practice, he represented some of the nation’s leading corporations, including United Virginia Bank, one of the largest in the state, and Philip Morris, the tobacco giant. He showed an unusual degree of loyalty to his clients, including the controversial ones. After the surgeon general’s report linking cigarettes to cancer and early death was released in 1964, Powell stood by Philip Morris. In a show of allegiance, he took up smoking, or at least the appearance of it, and engaged in his new habit conspicuously, even smoking at Philip Morris board meetings, where he made himself available to be photographed with a cigarette in hand.
Many senators were eager to support Powell after rejecting Nixon’s first two southern nominees. Powell also benefited from the fact that Democrats who had misgivings about him had greater concerns about Rehnquist. Despite the criticism from civil rights advocates, the Senate confirmed Powell by a vote of 89–1. The one vote against him came from Fred Harris, a populist Democrat from Oklahoma, who insisted that Powell was an elitist who lacked sympathy for the “little people.”
Rehnquist, meanwhile, was a more unusual choice for the Court, and his confirmation did not go as smoothly. Presidents usually nominate federal appeals court judges and occasionally senators or high public officials. Rehnquist was none of these things, nor did he have the national stature Powell had as a former American Bar Association president. He was an obscure Justice Department lawyer. He did, however, have strong support at the highest levels of the Nixon administration, including from Deputy Attorney General Richard Kleindienst, an Arizonan who had recruited him to leave Phoenix to join the administration. Nixon came to see advantages to the choice. He liked that Rehnquist was just forty-seven and could be on the Court for thirty years or more, perhaps eventually as chief justice. Most important, Nixon liked Rehnquist’s strongly held ideology, which he had proven in the attorney general’s office and in Arizona. Barry Goldwater, the Arizona senator who had been the Republicans’ far-right presidential nominee in 1964, said Rehnquist was the most conservative lawyer he had ever met.
Rehnquist’s whole life had, in fact, been one of remarkable ideological purity. He grew up outside Milwaukee in what The Washington Post called a “village full of Republicans,” where race relations were not an issue because “there were no blacks.” His senior prom had a Harlem theme, and prom-goers entered through a doorway festooned with “unique decorations in the form of Negro heads.” After serving in World War II, Rehnquist attended Stanford on the G.I. Bill. He went on to Stanford Law School, where he graduated first in his class.
Rehnquist clerked for Robert Jackson and then settled in Phoenix. He worked on Goldwater’s 1964 campaign and became part of his inner circle. When the civil rights movement reached Phoenix, Rehnquist testified against a proposed law to bar discrimination in stores and restaurants, which he insisted trampled on “a man’s private property.” After the law was enacted, Rehnquist complained in a letter to The Arizona Republic that, “unable to correct the source of the indignity to the Negro,” the law “redresses the situation by placing a separate indignity on the proprietor.” Rehnquist joined Nixon’s Justice Department in 1969 as assistant attorney general for the Office of Legal Counsel. In addition to his contributions to the effort to remove Fortas, Rehnquist worked on a variety of other politically charged matters, including monitoring student anti-war protesters, whom he called “the new barbarians.”
There was considerable opposition to Rehnquist’s nomination based on his hardline conservative views, particularly on race. His critics raised his opposition to Phoenix’s civil rights law and presented witnesses who had seen him challenge minority voters at the polls as part of a Republican “ballot security” program. The program had used “harassment and intimidation,” the critics said, to discourage blacks and Mexican Americans from voting. Rehnquist denied challenging voters, though it appears that he was lying. John Dean, Nixon’s White House counsel, reviewed the testimony long after he left the White House and said that “the conclusion is inescapable that Rehnquist’s statement . . . flatly denying that he had challenged voters . . . was false.”
Just before the floor debate began, Newsweek dropped a bombshell. It reported on a confidential memorandum Rehnquist had prepared as a law clerk for Jackson, when the Court was deciding Brown v. Board of Education. He wrote, “I think Plessy v. Ferguson”—the 1896 decision upholding the separate-but-equal doctrine—“was right and should be reaffirmed.” Rehnquist said in a letter to the Senate that the statement had simply been an attempt to capture Jackson’s views, but Jackson’s longtime secretary, Elsie Douglas, insisted that the memo in no way reflected the views of Jackson, who was a strong supporter of equality. Rehnquist had, she said, “smeared the reputation of a great justice.” The weight of evidence was on her side. In Simple Justice, his monumental history of Brown v. Board of Education, Richard Kluger closely examined the memorandum’s wording and history and concluded that Rehnquist was expressing his own view that racial segregation was constitutional.
Despite all of the objections, Rehnquist was confirmed by a vote of 68–26. When the news broke, Nixon called Rehnquist to offer his congratulations. He also gave Rehnquist some blunt advice that indicated what he expected from the Court he was creating: “Just be as mean and rough as they said you were, okay?”
Powell and Rehnquist were sworn in on January 7, 1972, becoming the third and fourth justices Nixon put on the Court in his first three years in office. When Harlan resigned, a White House official had understood exactly what it meant. “The next Court,” he said, would not be known as the “Burger Court or the Warren Court”—it would be “the Nixon Court.”
On February 23, the Court decided another case about housing for the poor, which the newly arrived Powell and Rehnquist did not participate in. Edna Lindsey and her husband, Donald, who was often confined to a wheelchair, lived with their three children, aged nine through fourteen, in a rented house that the Portland Bureau of Buildings found unfit for habitation. The house was, an expert witness said, “one of the worst” she had seen “that people are still living in.” It had broken windows, missing back steps, porch supports that were tearing loose, exposed wires in a child’s bedroom, and numerous other defects. The only repair the landlord was willing to make was nailing a single piece of plywood over one broken window. When it was clear she would not do any more, the Lindseys withheld their rent.
The landlord threatened to go to court to evict the Lindseys. If she did, there was an Oregon law that would prevent the Lindseys from raising as a defense the landlord’s failure to maintain the property in habitable condition. As a result, the court that heard their case would treat them simply as renters who were delinquent with their payments, not people intentionally withholding rent to pressure a landlord to make urgently needed repairs. The Lindseys challenged the law, arguing that it violated their Fourteenth Amendment due process rights because it prevented them from raising every possible defense to a lawsuit brought against them. When they failed to persuade a three-judge district court in Oregon, they brought their case to the Supreme Court.
The Court in Lindsey v. Normet upheld the Oregon law by a 5–2 vote. White, writing for the majority, said there was no due process right to defend against an eviction by asserting that a home was not habitable. If the Lindseys wanted to make that claim, he said, they could bring a separate lawsuit. White also firmly rejected the idea that shelter was a fundamental interest or that the Court should apply heightened scrutiny to the Oregon law because the Lindseys could lose their home. “We do not denigrate the importance of decent, safe, and sanitary housing,” he said, “but the Constitution does not provide judicial remedies for every social and economic ill.”
Lindsey represented yet another turning away from the rights of the poor. The Court could have declared that the Due Process Clause required government to meet basic elements of fairness before it removed people from their homes, much as it had ruled in Goldberg v. Kelly that there had to be a hearing before welfare benefits could be taken away. It also could have held that housing was a fundamental interest and imposed heightened scrutiny on any law that made it easier for landlords to take a family’s home away. Instead, the Court made it clear that the details of eviction proceedings were largely not its concern, just as it had held in Dandridge that “the intractable . . . problems presented by” welfare programs were “not the business of this Court.”
With the Nixon justices in increasingly firm control, the Court began to show a new meanspiritedness toward poor people. In January 1973, it decided United States v. Kras, a challenge to the mandatory fee that courts imposed on people who wanted to file for bankruptcy. Robert Kras, a New Yorker, was unemployed, heavily in debt, and the father of two, including an infant son with cystic fibrosis. He wanted to exercise his legal right to declare bankruptcy so he and his family could start over, but he could not afford the fee. He sued, arguing that preventing him from declaring bankruptcy because of his inability to pay a fee violated due process and equal protection.
Kras had strong precedents on his side. The Warren Court had ruled that poor people had a right to appeal their criminal case even if they could not afford to pay for a transcript, and it said that poor defendants had the right to an appointed lawyer at trial and on appeal. The Court had also held, in a case called Boddie v. Connecticut—decided in 1971, before Powell and Rehnquist joined the Court—that it violated due process for a state to deny poor people a divorce because they could not pay court fees.
In Kras, the Court ruled that there was no right to a waiver of a bankruptcy fee, by a 5–4 vote. Blackmun, writing for the four Nixon justices and White, said the fee should be subject only to rational-basis review, and under that lenient standard it had to be upheld. The Boddie precedent did not apply, he said, because marriages, and ending them, involved fundamental interests, but bankruptcy did not. Blackmun also insisted that, since Kras could pay in installments, he should not have a problem coming up with the fee. The weekly payments would be, he said, “little more than the cost of a pack or two of cigarettes.”
Marshall, in dissent, chided the majority for being too cavalier about what the fee meant to a poor person, a result, he said, of the justices not understanding “how close to the margin of survival” the poor often were. For many poor people, he said, a pack or two of cigarettes might be “not a routine purchase, but a luxury indulged in only rarely.” It was fine for judges to disagree about what the Constitution required, he said, but it was “disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.” Stewart, who was generally not a great supporter of the rights of the poor, was troubled by the obvious irony of the situation. “The Court today holds that Congress may say that some of the poor are too poor even to go bankrupt,” he wrote in a separate dissent. “I cannot agree.”
A few months later, the Court upheld another mandatory fee for the poor. In Ortwein v. Schwab, Raymond Ortwein, an elderly Oregonian, wanted to appeal when the state reduced his old-age benefits by $39 a month, but he could not afford the state court’s filing fee. When the court refused to waive the fee, Ortwein argued that it violated his rights of due process and equal protection.
On March 5, 1973, the Court ruled against Ortwein by the same 5–4 vote as in Kras. In an unsigned opinion, the majority said it would not apply heightened scrutiny in its review of the fee, even though it prevented Ortwein from challenging a benefit reduction that pushed him further into poverty. Ortwein was not a member of a “suspect classification, such as race” or “nationality,” the Court said, and there was no fundamental interest involved. Applying the lenient rational-basis standard of review, it accepted that the state court’s desire to produce more revenue was enough reason not to allow a fee waiver.
The dissenting justices wrote four separate dissents, with Douglas most passionately channeling the old Warren Court spirit. The fee constituted “discrimination against the poverty-stricken,” he insisted, and should have been struck down under the Equal Protection Clause. The Court’s decision, he said, “upholds a scheme of judicial review whereby justice remains a luxury for the wealthy.”
Something Kras and Ortwein had in common—besides holding that poor people could be too poor to use the legal system—was White. In both cases it was White, the Kennedy appointee, not Stewart, the Eisenhower nominee, who provided the Nixon justices with their fifth vote. White was a puzzle, and for liberals a great disappointment. He had been a friend of President Kennedy’s before he served as the number-two lawyer to his brother, Attorney General Robert F. Kennedy. In that position, he played a leading role in the administration’s civil rights efforts, including helping to protect the Freedom Riders, the protesters who traveled the South, starting in the early 1960s, challenging segregation in public facilities. When President Kennedy nominated White, he predicted that he would be “the ideal New Frontier judge.”
If Kennedy’s description suggested that White would be a solid liberal, that is not how it turned out. White was an often unpredictable centrist, who voted with the conservatives in some important cases, most famously in Roe v. Wade, the landmark 1973 decision establishing a right to abortion, in which White and Rehnquist were the only dissenters.
With the vote of White, or sometimes Stewart, the Nixon justices now dominated the Court. The liberals, who had once set the agenda, increasingly found themselves in dissent. In the 1972–73 term, Douglas, the most liberal justice, dissented in 50.7 percent of the cases, the highest dissent rate on the Court since 1795. The battle lines were drawn, and everyone acknowledged the new reality. When the elderly Douglas, whose vision and hearing were fading, was asked what he would do if he were no longer able to read the case briefs, he reportedly replied, “I’ll listen and see how the Chief votes and vote the other way.”
Even as the Court became more conservative, there were areas in which it remained liberal and even pushed the law in a more progressive direction. While it rejected claims from the poor, the Court was expanding the constitutional rights of noncitizens and women. In June 1971, in Graham v. Richardson, the Court struck down a law that restricted welfare benefits to citizens and people who had been United States residents for at least fifteen years. The challenge was brought by Carmen Richardson, a lawfully admitted resident noncitizen who had moved from Mexico to Arizona in 1956 and became permanently and totally disabled. The Court held that noncitizens were a suspect class under the Equal Protection Clause, and it applied strict scrutiny to the law. Comparing noncitizens to racial minorities, and invoking Carolene Products footnote 4, the Court said they “are a prime example of a ‘discrete and insular’ minority.”
The Court also elevated the constitutional status of women. In November 1971, in Reed v. Reed, a woman challenged an Idaho law that gave men preference in becoming estate administrators, and the Court found that it violated equal protection. In May 1973, in Frontiero v. Richardson, Sharron Frontiero brought a challenge to an Air Force rule that gave male officers more generous benefits than female ones. Frontiero was supported by Ruth Bader Ginsburg, who, as a lawyer for the American Civil Liberties Union (ACLU), was making her first Supreme Court argument. The Court applied heightened scrutiny to strike down the Air Force rule. A few years later, it specified that women as a class were entitled to “intermediate scrutiny” under the Equal Protection Clause—not as demanding as the strict scrutiny standard the Court used for race, religion, and national origin, but still enough to strike down discriminatory laws.
The standards the Court had laid out in footnote 4 for a “discrete and insular minority” were generally a good fit for noncitizens and women, even if women were not actually a minority. Both groups had long histories of discriminatory treatment and had limited power in the political process to protect their rights. For poor people and poverty lawyers, however, the designations were a reminder that the Court was still creating new suspect classes—it just was not giving that designation to the poor, even though they arguably had just as strong a claim as women or noncitizens to being a “discrete and insular minority.”
If the Court had recognized the poor as a suspect class and applied even intermediate scrutiny, many landmark poverty law decisions would probably have come out differently. The plaintiffs in Dandridge v. Williams, Wyman v. James, James v. Valtierra, and other cases would very likely have prevailed. As a result, millions of poor people nationwide would have had greater rights to welfare and housing.
There were many reasons the Court was unwilling to extend special constitutional protections to the poor. Some were inherent in the very idea of poor people’s rights. Many of the rights the poor sought were not directly about money, as cases like the challenges to California’s “anti-Okie” law and Oregon’s law restricting defenses in eviction cases demonstrated. The poverty law movement was, however, increasingly focusing on creating a constitutional right to subsistence, which many justices had no interest in doing. The Court had made clear in Dandridge that it did not want to wade into the details of how the government funded social programs and the decisions government officials made about aid to the needy. Even putting aside the question of a right to subsistence, many of the issues raised by poverty law were in tension with capitalism, since so many government policies could be seen as discriminating against the poor in one way or another, even ones as simple as requiring passengers to pay a fare to ride the bus. It was, on the whole, far less complicated to tell the government not to discriminate against black people or women than to tell it not to discriminate against the poor.
Some of the reasons for the Court’s reticence were more specifically tied to what was happening in America in the late 1960s and early 1970s. There was, of course, the enormous change in composition that the Court had just undergone. If Warren and Fortas had served longer, and even more so if Humphrey had won the 1968 election and appointed more liberals to the Court, the trajectory of poor people’s rights would likely have been very different.
Also important was what was going on outside the walls of the Court, where the nation’s economic and political climate was changing. The war on poverty had been launched in the early 1960s, at a time of optimism and growing prosperity. By the early 1970s, however, the economy was languishing, with both high unemployment and high inflation, which the press liked to call “stagflation.” The nation’s image of itself had also been badly wounded by Vietnam and Watergate. The idealism of the 1960s had been replaced by the cynicism and inward-looking focus of the 1970s, a national zeitgeist that was not favorable to expanding the rights of the poor.
Then there was what was happening within the poor people’s movement, which had been such a powerful force demanding change in the 1960s. By the early 1970s, the movement was badly fraying, if not actively disintegrating. There was a growing schism between advocates for incremental reform and more radical elements, which was causing supporters to fall away and funding to dry up. The once fiery National Welfare Rights Organization ran out of money and laid off staff. After years of advocates for the poor complaining that welfare programs were badly underfunded, there was a growing countermovement of advocates arguing that welfare spending was excessive. When New York City teetered on the brink of bankruptcy in 1975, fiscal conservatives loudly put the blame on the burden imposed by its “overgenerous” social welfare spending.
Even in liberal circles, intellectuals began to turn against the poor. In the mid-1970s, the journalistic exploration of poverty talked about the most at New York dinner parties and in Washington salons was Susan Sheehan’s “A Welfare Mother,” a New Yorker article that was later published as a book. It took a very different approach from Michael Harrington’s The Other America, which made such an impassioned case for rescuing the nation’s poor. Sheehan presented her subject, a Puerto Rican mother in Brooklyn, with considerable detachment, drifting at times into disapproval. The book emphasized, one critic said, the welfare mother’s “passivity, isolation, political apathy, and intellectual weakness.” It was less a rallying cry than a cry of exhaustion.
In this new, less favorable national climate for the poor, the Court went from not expanding the rights of poor people to taking back rights it had already given them. In 1976, it decided Mathews v. Eldridge, a case that in every important way resembled Goldberg v. Kelly. George Eldridge, a Virginia father of six, had received Social Security disability benefits for diabetes, back strain, and chronic anxiety for four years when he was cut off without a pre-termination hearing. He had no way to support his children without the benefits. Eldridge sued for the right to a hearing at which he could make a case for why he deserved to keep receiving benefits, relying on Goldberg as precedent.
The Court ruled against Eldridge by a 6–3 vote. Powell, writing for the four Nixon justices, Stewart, and White, conceded that Eldridge was seeking to protect the same interest John Kelly had: “the uninterrupted receipt of” his “source of income” until he had a chance to have his objections heard. Powell also admitted that disabled people generally had “modest resources” and that if Eldridge was cut off, it might take him a year or more to get the decision reversed, due to the “torpidity” of the review process. Still, Powell insisted that termination of disability benefits without a hearing was not as bad as the termination of welfare benefits at issue in Goldberg, because a disabled worker likely had access to more “private resources” or “other forms of government assistance.”
It was a bizarre analysis. Eldridge was seeking the same kind of hearing Kelly was given and for the same reason, and the Court rejected him based on its conjecture that he would not be as affected by the cutoff of funds. In dissent, Brennan insisted that the Court’s claim that disability recipients needed their benefits less than welfare recipients was purely “speculative.” Brennan also noted that Eldridge actually did not have the sort of resources the majority assumed. The record showed, he noted, that after Eldridge’s disability payments stopped, his home was foreclosed on, “and the family’s furniture was repossessed, forcing Eldridge, his wife, and their children to sleep in one bed.”
The Nixon Court’s views about the rights of the poor were becoming unmistakable, and poverty lawyers began to avoid the federal courts. There was little chance, they understood, of winning another Gideon v. Wainwright or Goldberg v. Kelly. Now, a ruling from the Supreme Court was more likely to take rights away from their clients. From 1965 to 1974, lawyers from legal services programs, who did much of the nation’s anti-poverty litigation, brought 164 cases to the Supreme Court, which accepted 119 of them. For the next decade and a half, legal services lawyers all but abandoned the federal courts. Patricia Wald, the onetime neighborhood legal services lawyer who went on to be chief judge of the U.S. Court of Appeals for the D.C. Circuit, said that in these years federal legal services litigation “in Alice in Wonderland fashion . . . got littler and littler until it almost disappeared altogether.”
In 1986, the Burger Court ended, after seventeen years. Burger announced that he was leaving to help organize ceremonies to mark the Constitution’s bicentennial, the following year. The seventy-eight-year-old chief justice was healthy—he lived another nine years—and his new position was largely ceremonial. The timing suggested that, with Reagan’s presidency winding down, Burger wanted to ensure that a Republican president filled his seat. If he was making a political calculation, it was an accurate one: had Burger remained in office until his death, in 1995, President Bill Clinton would have nominated the next chief justice.
At the time of Burger’s announcement, the conservative Court that Nixon had created was intact, with a few changes in membership. In 1975, William O. Douglas had retired after suffering a stroke. Ford was in a difficult position, having inherited the presidency after Nixon resigned and facing an election in 1976. To succeed Douglas, Ford nominated a moderate Republican, Judge John Paul Stevens of the Chicago-based U.S. Court of Appeals for the Seventh Circuit, correctly assuming that he would be confirmed easily. Stevens quickly became one of the most liberal justices, which meant the replacement of the extremely liberal Douglas with Stevens shifted the Court only slightly to the right. In 1981, Potter Stewart retired and President Ronald Reagan nominated Sandra Day O’Connor to the seat. Her nomination was historic, in that she was the first woman justice, but her views were not substantially different from Stewart’s.
In selecting a new chief justice to replace Burger, Reagan’s main adviser was his attorney general, Edwin Meese. Meese was a hardline conservative, and no friend of poor Americans. A few years earlier, he had caused an uproar when he defended cuts to programs for the poor by saying, “We’ve had considerable information that people go to soup kitchens because the food is free and that’s easier than paying for it.”
Reagan, Meese, and the movement conservatives Meese surrounded himself with were eager to push the Court further to the right. They wanted justices who followed the “original intent” of the Constitution’s framers, a fashionable conservative theory at the time, and ones who would be guided by “judicial restraint,” by which they meant justices who would defer to the decisions made by the elected branches of government. Reagan quickly settled on Rehnquist, the Court’s most conservative member, to be the next chief justice. To fill Rehnquist’s seat, he chose Judge Antonin Scalia, of the U.S. Court of Appeals for the D.C. Circuit. Scalia, an Italian immigrant’s son who grew up in Queens, New York, taught at the University of Chicago Law School before going on the bench. Reagan officials appreciated that Scalia was, as one news account reported, “a deeply conservative thinker whose views on major issues were quite compatible with the Administration’s policy agenda.”
At Rehnquist’s confirmation hearing, Democrats raised the same issues they had at his first hearing—and one new one. “It now appears,” said Senator Edward Kennedy, of Massachusetts, “that Mr. Rehnquist was less than candid . . . at his confirmation hearing in 1971.” The Democrats presented witnesses who had seen Rehnquist harassing minority voters in Phoenix in the 1960s, including a former FBI agent, but Rehnquist continued to deny the charge. When Kennedy asked about the witnesses, Rehnquist responded, “I think they’re mistaken. I just can’t offer any other explanation.”
Kennedy said the real issue was whether Rehnquist was “mainstream or too extreme,” and he answered his own question. “He is too extreme on race, too extreme on women’s rights, too extreme on freedom of speech, too extreme on separation of church and state, too extreme to be chief justice,” Kennedy told his Senate colleagues. Rehnquist’s critics were no more effective, however, than they had been in 1971. The Senate confirmed him by a 65–33 vote.
While the Senate focused on Rehnquist, Scalia sailed through to confirmation. He “declined to answer most of the questions in which the senators were most interested,” The New York Times reported, but his uncooperativeness did not hurt him. Senators were reluctant to subject two nominees to tough questioning at the same time, or to oppose a nominee who would be the first Italian American justice. Scalia was confirmed by a vote of 98–0.
Rehnquist and Scalia were sworn into office on September 26, 1986. With Rehnquist replacing Burger and Scalia replacing Rehnquist, the number of conservatives remained the same, but there was still a shift. Rehnquist was a more forceful chief justice than Burger had been, and Scalia brought a new level of erudition and passion to the conservative bloc. As a result, the energy on the right of the Court increased significantly.
There would soon be more departures and arrivals. In June 1987, Lewis Powell retired. Reagan nominated Robert Bork, an archconservative judge on the U.S. Court of Appeals for the D.C. Circuit, who was defeated after a bitter confirmation battle that focused on his extreme views. Another nominee, Judge Douglas Ginsburg of the D.C. Circuit, was tripped up by a scandal over his having used marijuana years earlier. Reagan then turned to Anthony Kennedy, a conservative judge on the San Francisco–based U.S. Court of Appeals for the Ninth Circuit. Kennedy was confirmed, and when he took Powell’s seat it was another roughly even exchange, ideologically speaking. In 1990, William Brennan retired, and President George H. W. Bush nominated Judge David Souter, of the Boston-based U.S. Court of Appeals for the First Circuit. Souter, a New Hampshire resident, was thought to be conservative, but he quickly joined the liberal bloc. It ended up being another change that did not significantly alter the Court’s ideology. Liberals were surprised and delighted that Bush had ended up putting another liberal justice on the Court, while conservatives felt betrayed—and adopted the rallying cry “No more Souters!”
More changes followed, but the Court’s ideological tilt remained roughly the same. In 1991, when Thurgood Marshall retired, Bush nominated Clarence Thomas, a conservative judge on the U.S. Court of Appeals for the D.C. Circuit. Thomas’s nomination was nearly derailed when Anita Hill, his former employee at the Equal Employment Opportunity Commission, accused him of sexual harassment, but he was confirmed by a 52–48 vote. Marshall’s replacement by Thomas moved the Court considerably to the right. In 1993, President Clinton nominated Ruth Bader Ginsburg for the seat of the retiring Byron White, shifting the Court to the left. The following year, Clinton nominated Stephen Breyer, a judge on the Boston-based U.S. Court of Appeals for the First Circuit, to replace Harry Blackmun. Blackmun, who wrote the majority opinion in Roe v. Wade in 1973, had undergone one of the most extreme ideological transitions of any member of the Court: the onetime conservative Nixon justice had ended up as one of the most liberal justices. As a result, when the pragmatic liberal Breyer replaced Blackmun, the Court’s ideology did not change greatly. More than two decades after the Nixon justices arrived, the conservatives maintained their dominance.
In the mid-1990s, while the Court continued to see few poverty cases, the political branches moved aggressively into welfare policy. The war on poverty was now long-ago history, and there were growing calls for “welfare reform.” In the 1994 election, Republicans released their “Contract with America,” a set of promises for what they would do if they took control of Congress, including a commitment to make major changes in welfare programs. After Republicans won majorities in the House and Senate, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, an overhaul of federal welfare law. President Clinton, who had promised to be a new kind of Democrat when he ran for office in 1992, signed the bill into law.
The new law ended AFDC and replaced it with Temporary Assistance for Needy Families (TANF), dismantling a key part of the social safety net that had been building since the start of the New Deal. Under AFDC, there was a right to welfare for eligible recipients, even if the amounts were inadequate. TANF ended that right, allowing states to completely deny benefits to needy families. The new law also limited recipients to five years of aid over the course of a lifetime, with few exceptions. In another major change, TANF gave welfare funds to the states in block grants, allowing them to spend the money on programs that did not deliver cash directly to poor people. When Clinton signed the law, in the summer of 1996, two of his top welfare officials resigned in protest.
Under TANF, poor people’s access to welfare was sharply reduced. Before the new law, about thirteen million people received cash benefits. By 2016, only about three million did. The amount of money states spent on cash assistance declined by two-thirds in inflation-adjusted dollars between 1997, when TANF took effect, and 2017. Arkansas spent only 4 percent of its TANF funds on direct cash assistance in 2017. States have shifted federal welfare money to an array of programs that do not help poor people pay for food and shelter. In some states, TANF funds have been used to promote “healthy marriage” programs or abstinence-only education. A national study found that the higher the percentage of black families in a state, the more likely it was to use TANF funds for these “family values” programs rather than give it to poor people to pay their bills.
The number of children in extreme poverty increased dramatically during these years. From 1995 to 2005, the percentage of children who were living below half the poverty level increased from 2.1 percent to 3 percent. By the end of those ten years, an additional 700,000 children were living in this kind of deep poverty, a level of deprivation that has been shown to have “lasting consequences on health, developmental, and educational outcomes, which can lead to persistent poverty across generations.” The Center on Budget and Policy Priorities concluded that the 1996 welfare reform law had produced “a system that provides a safety net to very few families in need.”
The unraveling of welfare was driven by Congress and the president, but it occurred against the backdrop of a Supreme Court that had made it clear that, as it said more than two decades earlier in Dandridge v. Williams, the “intractable . . . problems presented by public welfare assistance” were not its “business.” Had the Court been more protective of the rights of poor people, advocates for the poor might have been able to defend the social safety net against the onslaught of the 1996 law.
If the Court had held that the poor were a suspect class, and applied strict scrutiny—or even the intermediate scrutiny given to laws that burden women—it would have provided a basis for challenging some of the harshest effects of welfare reform on poor Americans. Peter Edelman, a Georgetown law professor who was one of the two Clinton welfare officials to resign in protest, has argued that if the poor were a suspect class, major parts of the 1996 law could have been struck down. Government should have leeway in designing public benefits, Edelman said, but it should not be able to establish systems with outcomes as arbitrary as TANF, which provides no support to many Americans and highly inadequate amounts to many more.
TANF could have been challenged for the highly unequal way it operated nationwide. As a result of the broad discretion the law gave the states, coverage rates vary greatly. About a decade after TANF took effect, roughly 73 percent of poor families in California received benefits. In another nineteen states, fewer than 20 percent of poor families received benefits, including Wyoming, where just 4 percent did. Benefit levels are also highly unequal, ranging from about half the poverty level in Alaska to about 11 percent in Mississippi.
Another provision of TANF that would have been vulnerable to challenge if the poor had greater constitutional status was the lifetime limit on receiving benefits. This limit cut off assistance even if a beneficiary had no prospect of finding work or other income, and the impact was felt most by children, who were unable to work. TANF set a lifetime limit of five years, but it gave states discretion to set even shorter limits. In 2016, Arizona adopted a twelve-month lifetime limit. Benefit termination from hitting a lifetime limit is often devastating to poor people. One study of Maine families that were cut off after five years found that their median income was $3,120 a year, or about 16 percent of the federal poverty level.
After the Nixon Court’s rulings, the poor had no legal recourse when the national welfare program was decimated. Congressional Republicans and President Clinton were free to do what they wanted in the 1996 law because, as Marshall observed at the start of the Burger Court with only slight exaggeration, laws harming the poor received “no scrutiny whatsoever.”
In September 2005, William Rehnquist died of cancer, bringing another era to an end. The Court’s ideology at the time of his death was still essentially the same as it had been in 1972, when the Nixon Court formed. Only the justices had changed. There were five conservatives: Rehnquist, Scalia, Thomas, Kennedy, and O’Connor. There were four liberals: Stevens, Souter, Ginsburg, and Breyer. The most centrist of the conservatives, O’Connor, was the swing justice, and her vote decided many of the most ideologically charged cases.
Since George W. Bush was president at the time of Rehnquist’s death, the next chief justice would clearly be a conservative—unless there was a miscalculation, as there had been with the choice of Souter—and the Court’s ideological balance would remain unchanged. There was, however, a complication: when Rehnquist died, President Bush was already in the process of choosing a new justice. In July 2005, Sandra Day O’Connor had announced plans to retire to spend more time with her husband, who was suffering from Alzheimer’s disease. Bush announced that he was nominating John Roberts, a conservative judge on the U.S. Court of Appeals for the D.C. Circuit, to replace her. At the time of Rehnquist’s death, Roberts was preparing for his confirmation hearings. The plans were changed, however, and Bush nominated Roberts to be the next chief justice.
The White House was excited about Roberts, the administration’s first nominee to the Court. His record had been pored over by conservative activists, including the Federalist Society, the preeminent conservative legal organization. Conservatives were still bitter about the Souter nomination and were intent on avoiding another post-confirmation surprise. The ideological gatekeepers felt confident that Roberts would remain true to his conservative convictions.
There was a great deal in Roberts’s background to reassure them. He was the son of a Bethlehem Steel plant manager and had spent most of his childhood in Long Beach, Indiana, a comfortable, largely white enclave near the poorer and blacker city of Gary. After graduating from Harvard College, where he attended Catholic Mass every Sunday, and Harvard Law School, Roberts served as a law clerk for Rehnquist. He then worked in the Reagan Justice Department, where he argued for scaling back the reach of the Voting Rights Act, among other anti-civil-rights positions. Roberts went on to serve as a politically oriented deputy solicitor general in the George H. W. Bush administration and to advise George W. Bush’s side on the Florida recount in the 2000 election. After Bush won Florida and the presidency, he named Roberts to the D.C. Circuit. When Roberts was not working for the federal government, he was a partner in a large Washington law firm, representing major corporations, including automakers and the National Mining Association. Roberts and his wife, a lawyer who served on the board of a right-to-life organization, were devout Catholics, described by one friend as “deeply religious.”
Many Democrats were worried about Roberts’s views about the law, but there was little in his record they could use to stop him. At his confirmation hearings, Roberts insisted that he would not come to the Court with an ideological agenda and that he believed in judicial restraint. In his testimony, he used what would become an oft-quoted metaphor to explain how restrained he intended to be. “I will remember,” he said, “that it’s my job to call balls and strikes, and not to pitch or bat.” Roberts was confirmed by a 78–22 vote.
To fill O’Connor’s seat, President Bush first nominated Harriet Miers, his White House counsel, who met with stiff resistance. Conservatives did not trust her ideological commitment, and a wider group of critics questioned whether she had appropriate qualifications to serve on the Court. In the face of this opposition, Miers withdrew.
Bush then nominated Judge Samuel Alito, of the Philadelphia-based U.S. Court of Appeals for the Third Circuit, who had strong backing from conservative activists. They “were as enthusiastic about Alito as they had been wary of Miers,” Karl Rove, Bush’s political adviser, recalled. Alito had a lengthy record of supporting conservative causes, including his membership in Concerned Alumni of Princeton, which had a variety of complaints involving coeducation, affirmative action, and other changes to Princeton’s traditional ways. One of Alito’s first political inspirations was the 1964 Goldwater presidential campaign, and his views on the law were shaped, he said, by “deep disagreement with Warren Court decisions.”
Like Roberts, Alito had served in Reagan’s Justice Department, helping with his right-leaning legal revolution. On the Third Circuit, Alito had been a reliable conservative vote, including in abortion and civil rights cases. He was sometimes called “Scalito,” a nickname he disliked, because of his similarity to Scalia.
With the addition of Roberts and Alito, the ideological center of the Court shifted. Roberts and Rehnquist had roughly comparable ideologies. Alito, however, was considerably to the right of O’Connor. With O’Connor’s departure, the new swing justice was Kennedy, who was now the most centrist of the conservative justices. O’Connor and Kennedy were not very far apart ideologically, but with Kennedy as the new swing justice, the center of the Court would undeniably be further to the right.
During the Obama presidency, the Court’s membership continued to change, though its ideological balance still did not. In 2009, David Souter retired and President Obama nominated Sonia Sotomayor, a judge on the New York–based U.S. Court of Appeals for the Second Circuit, to fill his seat. Sotomayor, a Puerto Rican American raised by a single mother in a Bronx housing project, became the first Hispanic to serve on the Court. The following year, John Paul Stevens retired and Obama nominated Elena Kagan, his solicitor general, who had been the first woman dean of Harvard Law School. Sotomayor and Kagan, both liberals, replaced two departing justices who, though nominated by Republicans, had also been liberals. As a result, the Court maintained its 5–4 ideological split.
The Roberts Court continued scaling back the rights of the poor. In 2011, in Turner v. Rogers, it undermined Gideon v. Wainwright’s promise of a right to counsel for poor defendants. Michael Turner was an unemployed man from rural Oconee County, South Carolina, who fathered a child as a teenager. Turner, who was never married to the child’s mother, was ordered to pay child support. The family court knew he was unemployed, but it still imputed an income to him and ordered him to make weekly payments. Turner fell behind on his child support obligations, and, with a disability, drug addiction issues, and few job prospects, he had little hope of catching up. He had already served a one-year jail sentence for failure to pay child support.
Turner had a hearing scheduled for failure to pay child support, and he did not have a lawyer. He told the judge he had already been sent to jail for being behind in his payments. “I’ve tried to find a job. I, honest to God, have tried this time,” he said. “There’s no work out there hardly for carpenters. I couldn’t find anything, so I been putting in applications in grocery stores, you name it.” The judge did not ask Turner about his disability or addiction, and there was no reference at the hearing to the fact that, with the Great Recession raging, unemployment in the area was above 13 percent. Turner was sentenced to six months in jail unless he could come up with a significant part of the money he owed.
Turner argued on appeal that a lawyer should have been appointed to represent him. The rule that emerged from Gideon and later cases was that poor defendants had the right to an appointed lawyer for felonies or misdemeanors that could result in imprisonment. Turner faced an obstacle, however: Gideon, which was decided under the Sixth Amendment, applied only to criminal cases, and child support hearings were civil proceedings. In his appeal, Turner argued that the Due Process Clause guaranteed a right to counsel to parties in civil proceedings who faced imprisonment. Turner contended that, civil or criminal, the principle was the same: that the state should not be able to sentence someone to prison because he could not afford to hire a lawyer to put on a competent defense.
When his case reached the Court, Turner had strong support in the legal profession. A former solicitor general represented him before the Court, and the National Legal Aid & Defender Association and the ACLU weighed in on his side. Turner could also point to twenty-two federal appeals courts or top-level state courts across the country that had ruled in favor of people in his position. Advocates for the poor were optimistic that Turner’s case could be the one in which the Court finally extended Gideon to civil defendants facing jail time.
The Court, however, ruled against a right to counsel in civil proceedings, and its decision was unanimous. Breyer, writing for a five-justice majority, applied a due process balancing test to Turner’s claim. In considering whether the civil proceeding was fundamentally fair under the Due Process Clause, the Court considered a number of factors: what Turner’s interest was; the risk that he would be erroneously deprived of it; and the government’s interest in not providing what Turner was seeking.
On the first prong, Breyer conceded that Turner’s interest was very strong: staying out of jail. On the second prong, he insisted that there was not a great risk, because whether or not a parent is able to pay child support is not a complicated matter for a court to figure out if the right procedures are in place. On the third prong, Breyer said the government had a strong interest in not providing parents like Turner with lawyers, because to do so could mean that the delinquent parent would have a lawyer at a child support hearing but the parent seeking to recover child support would not.
Weighing all of these factors, Breyer said the balance came out against requiring an appointed lawyer, as long as there were “procedural safeguards” to protect Turner and others like him. Breyer listed the sorts of safeguards he had in mind. One safeguard was a requirement that the court conducting the hearing notify the defendant that his ability to pay was a critical issue in the proceeding. Another was the court using “a form (or the equivalent) to elicit relevant financial information” from the defendant, so it would be clear whether he had an ability to pay. A third was that the court should have to make an express finding that a defendant had the ability to pay before sentencing him to jail. The four dissenters would not have required even those safeguards.
The Turner decision was an indication of just how badly the Court’s approach to the rights of the poor had degraded. In 1963, the Court ruled unanimously that a poor man facing burglary charges had the right to an appointed lawyer. In 2011, not a single justice voted that a poor, disabled parent who could not pay child support had the right to a lawyer for a proceeding that could put him behind bars for a year. Advocates for the poor insisted that the Court did not understand what it meant for someone like Turner to try to defend himself—and that it put too much faith in its vaunted “procedural safeguards.” The executive director of the National Association of Criminal Defense Lawyers said the Turner decision “betrays naïve simplicity and a breathtaking disconnect from the real world.”
A year later, in 2012, the Court handed the poor an even larger defeat, in a ruling widely hailed as a progressive victory. The case was National Federation of Independent Business v. Sebelius, the high-profile challenge to the Patient Protection and Affordable Care Act (ACA), better known as Obamacare. Many observers expected the Court to strike down the “individual mandate,” which required most Americans to obtain health insurance or pay a penalty. The Court upheld the mandate, however, by a 5–4 vote, with Roberts joining the four liberal justices—Ginsburg, Breyer, Kagan, and Sotomayor—to create the majority. The New York Times hailed the ruling as “a victory for Mr. Obama and Congressional Democrats, affirming the central legislative achievement of Mr. Obama’s presidency.”
The news coverage focused on Roberts’s vote to affirm the main provisions of the law, which came as something of a surprise. It was later reported that in the first vote after the oral argument, Roberts had been inclined to provide his fellow conservatives with the fifth vote to strike down the individual mandate, but that he later switched his position. Legal analysts debated Roberts’s motives, weighing the possibility that he had acted out of a desire to protect the Court’s reputation—or his own.
Far less attention was paid to the fact that the Court did strike down another part of the law, its Medicaid expansion provision, which was enacted to bring health care to millions of the poorest Americans. Medicaid expansion added to the categories of people that the states were required to provide with coverage if they wanted to remain in the program. It required states to cover all adults with incomes up to 133 percent of the federal poverty level, a significantly higher threshold than many had been using. It also filled another major gap. As originally conceived, Medicaid covered poor children and their parents but not poor adults without dependent children. Medicaid expansion required states to cover childless adults. If a state did not expand coverage as the ACA specified, it would lose all of its federal Medicaid funding.
The Court invalidated the ACA’s mandatory Medicaid expansion by a 7–2 vote, holding that it violated the Constitution’s Spending Clause. This decision was another surprise: Court watchers and legal scholars did not consider the Medicaid expansion to be in danger of being struck down, and the lower courts that had reviewed the ACA had no problem with it. The majority for striking down Medicaid expansion included the Court’s five conservatives—Roberts, Thomas, Alito, Scalia, and Kennedy—and two liberals, Breyer and Kagan. A veteran Supreme Court journalist, in a biography of Roberts, reported that Breyer and Kagan were going to vote to uphold Medicaid expansion but instead made a pragmatic decision to join Roberts’s opinion to help lock in his vote on the main parts of the ACA, which affected a much larger group of Americans. If that is what happened, no real harm was done: Roberts had the five votes to strike down Medicaid expansion without Breyer or Kagan.
Roberts said in his opinion that the Medicaid expansion provision, by requiring states to cover the new categories of beneficiaries if they wanted to remain in the program, was unduly coercive. The states spent so much on Medicaid, he said, and such a large percentage of the funds came from the federal government, that it would be nearly impossible for them to say no to the expansion. The pressure to accept Medicaid expansion was so great, Roberts insisted, that it amounted to “economic dragooning” and a “gun to the head” of the states.
To reach this holding, Roberts relied on the Constitution’s Spending Clause, an obscure constitutional provision that had never been used in this way. Roberts cited a 1987 case in which South Dakota had tried to use the Spending Clause to challenge the National Minimum Drinking Age Act, which docked states 5 percent of their federal highway funds if they did not raise their drinking age to twenty-one. The case, however, was weak support for Roberts’s position. What Congress did with the National Minimum Drinking Age Act was far more coercive toward the states than Medicaid expansion. Congress was using highway funds to meddle in drinking ages, which had long been set by states, while Medicaid expansion was merely changing the qualifications for a program whose eligibility rules had always been set by Congress. There was another reason the South Dakota case was weak support for Roberts’s argument: the Court in 1987 had rejected South Dakota’s argument and upheld the National Minimum Drinking Age Act.
The two dissenters from the Medicaid expansion holding were Ginsburg and Sotomayor. It was no surprise that they were the two justices to vote in favor of the poor Americans who would lose health coverage. Ginsburg and Sotomayor were not only the two most liberal justices; more than any justice since Marshall, they had come to the Court with personal experiences that inclined them to look out for marginalized members of society, and both have said that their backgrounds helped shape their approach to the law.
Ginsburg grew up in working-class Brooklyn. Her father was a Russian Jewish immigrant, and her mother was born in America to an immigrant family. Neither of them had enough money to attend college. In her childhood, Ginsburg had been exposed to bigotry firsthand. At her confirmation hearing, she recalled driving through Pennsylvania with her parents and seeing a resort with a sign out front that read: NO DOGS OR JEWS ALLOWED. Ginsburg’s formative years occurred while the Holocaust was unfolding. “We came to know more and more what was happening to the Jews in Europe,” she said in an interview, and had “the sense of being an outsider—of being one of the people who had suffered oppression for no sensible reason.”
She attended Cornell and Harvard Law School, where she was one of nine women in a class of more than five hundred. She then transferred to Columbia Law School to be in New York with her husband, who had taken a law firm job there, and graduated tied for first in her class. Ginsburg taught law at Rutgers and then at Columbia, but she made her name as co-founder of the ACLU’s Women’s Rights Project. One of her greatest victories came in 1973 in Frontiero, when the Court struck down the Air Force benefits rule that favored male officers over female officers.
Ginsburg was nominated to the U.S. Court of Appeals for the D.C. Circuit in 1980 by President Jimmy Carter and to the Supreme Court in 1993 by President Clinton. There had not been a public interest advocate like Ginsburg on the Court since Marshall left, and her background in working for equality was evident in her rulings. She also brought her childhood experiences with her. They made her, she said, “more empathetic to other people who are . . . outsiders.”
Sotomayor, a self-proclaimed “Nuyorican,” was also in many ways an outsider. She was born in the South Bronx to a father who was a factory worker and a mother who was a nurse, both of whom had relocated from Puerto Rico. Her father died when she was young and her mother raised her alone, in public housing, while working six days a week. Sotomayor was diagnosed with juvenile diabetes at the age of eight and had to inject herself with insulin throughout her childhood.
After graduating from Princeton and Yale Law School, Sotomayor worked in the Manhattan District Attorney’s Office and in private practice and served on the board of the Puerto Rican Legal Defense and Education Fund. On the recommendation of Senator Daniel Patrick Moynihan, a Democrat, President George H. W. Bush appointed her to the federal district court in Manhattan in 1992. Six years later, President Clinton nominated her to the New York–based U.S. Court of Appeals for the Second Circuit, and in 2009 President Obama nominated her to the Supreme Court.
Sotomayor had talked about feeling different because of her Puerto Rican background and her challenging childhood, and about her sense of being “not completely a part of the worlds I inhabit.” In a lecture at the University of California–Berkeley School of Law in 2001 entitled “A Latina Judge’s Voice,” she said, “Personal experiences affect the facts that judges choose to see.” Although she said she could not define exactly what difference they made in her judging, she accepted that “there will be some based on my gender and my Latina heritage.”
In her opinion dissenting from the Medicaid expansion ruling, which Sotomayor joined her in, Ginsburg insisted that the issue was “simple” and the majority got it wrong. There was nothing unduly coercive about Medicaid expansion, she said. Congress created Medicaid with the idea that it would expand over time, and it set the eligibility rules for it each year. Adding new eligible individuals to the program was not “economic dragooning,” she said. It was ordinary annual budgeting, and states were free to participate in that year’s version of Medicaid or not. Many experts agreed with Ginsburg. One scholarly article said that, in its Medicaid expansion holding, the Court had “cut many corners on the actual history and facts of the Medicaid program, pounding many a square peg into round holes in order to fit a narrative of coercion.”
Ginsburg also argued that the claim that Medicaid expansion would impose “very substantial costs” on the states was overstated. The Congressional Budget Office, she pointed out, projected that the expansion would increase states’ Medicaid spending by just 0.8 percent. Later, the nonpartisan RAND Corporation issued a study concluding that Medicaid expansion was actually the best economic option for states when increased federal funding, reduced costs of uncompensated medical care, and other factors were taken into account.
Ginsburg did not point out one of the most troubling aspects of Roberts’s opinion: the hypocrisy. At his confirmation hearings, Roberts had insisted that he saw his role as a judge as simply calling balls and strikes. For years, conservatives had criticized the Warren Court, and liberal judges generally, for their “judicial activism.” They meant two things: that liberal judges were overruling decisions of the elected branches of government and that they were using vague constitutional provisions to implement their own policy preferences. Now that Roberts was on the bench, he was being a judicial activist by the standard conservative definition. He was striking down a mandate that Congress had adopted and the president had signed into law, and he was doing it based on a constitutional clause whose meaning was anything but clear.
With its Affordable Care Act ruling, the Court’s evolution on the rights of the poor was complete. The days were long past when the Court was finding new ways to interpret the Constitution to ensure that no one was wrongly deprived of “the means to obtain essential food, clothing, housing, and medical care,” as Brennan wrote in Goldberg v. Kelly. Now it was interpreting the Constitution to deny poor people medical care that Congress had provided them through legislation. The poor were no longer on the verge of being recognized as a “discrete and insular minority”—they were being branded as people who “dragooned” the states, gun in hand, to give them things they were not entitled to. The Court no longer saw poor people as a group to be protected but as one to be protected against.
The Court’s past five decades of rulings on the rights of the poor have been more than debates over legal doctrine: they have had a significant financial impact on Americans who live, as President Johnson said in his 1964 State of the Union address, “on the outskirts of hope.” The Court wrestled, often at high levels of abstraction, with questions like whether the poor should be a suspect class and how to interpret the AFDC statute. On a practical level, its decisions in many cases determined whether poor families had enough money to pay the rent or buy food for the week.
The Warren Court’s rulings provided low-income people with critical financial support. Until King v. Smith was decided, the man-in-the-house rule made about 500,000 poor children ineligible for AFDC benefits. Before the Court handed down Shapiro v. Thompson, durational residential requirements cut off at least another 100,000 people a year. The Goldberg v. Kelly decision prevented untold numbers of welfare recipients from being cut off from welfare at the whim of a caseworker. These decisions worked quietly: no poor person received a check signed by Earl Warren and the other justices, and many no doubt did not know who had saved them. In the aggregate, however, the Warren Court’s poverty law rulings made an enormous difference in the lives of millions of low-income Americans.
When the Court reversed direction starting in 1970, the harm it did was also far-reaching. The impact of some of its rulings against the poor has been large but incalculable. There is no data on how many people have gone to jail, or for how long, since the Court held in Turner v. Rogers that they did not have the right to a lawyer at a child support hearing. There have certainly been many. Enough parents are going to jail for not paying child support that the Congressional Research Service did a report on it in 2012, concluding that they suffer a wide array of financial injuries. Similarly, the impact of Lindsey v. Normet, which denied tenants facing eviction strong due process rights, has also been unknowable but significant. If the Court had given poor tenants greater constitutional protections against unjustified evictions, it could have helped to prevent or alleviate the nation’s eviction crisis. In a recent year, nearly one million Americans were evicted—an event that is often crushing for the finances and futures of the adults and children involved.
There is more evidence about the harm done by the 1970 decision Dandridge v. Williams. The Urban Institute did an analysis in 2006 of the impact of slightly different family caps than the one Maryland imposed on Linda Williams and her family, but ones that Dandridge had cleared the way for: caps that deny eligibility to children conceived and born while a family was receiving TANF. States began adopting them after the 1996 welfare reform law, and twenty-two enacted them at some point. Although the purported purpose was to discourage people on welfare from adding to the welfare rolls, an undeniable effect has been to ensure that some of the nation’s poorest children, brought into the world through no fault of their own, grow up in severe poverty. The Urban Institute found that these family caps increased a state’s “deep poverty” rate—those living below 50 percent of the poverty level—for children by 1.7 percentage points. As with the beneficiaries of the Warren Court’s rulings, the families who are further impoverished likely do not know the role the Supreme Court played in their lives—or that if Nixon had not driven Fortas off the Court, they might well be receiving uncapped welfare benefits.
The impact of Sebelius is even clearer. It allowed states to continue denying Medicaid to groups that Congress had required to be covered. Under this “red state option,” as the new legal landscape came to be known, by 2019 there were still fourteen states, mainly Republican-controlled ones in the Deep South and the middle of the country, that chose not to expand their Medicaid rolls. If the Court had not struck down Medicaid expansion, as many as 4.7 million more low-income Americans would have coverage.
The harm to those nearly five million poor Americans was enormous. The ruling hurt them financially: people without Medicaid have to pay more of their medical bills out of their own pockets. According to one study, low-income non-Medicaid families spend about five times as much on health care as Medicaid families. The study also found that low-income non-Medicaid households spent 19 percent of their budgets on food, as compared with 24 percent for low-income Medicaid households. That suggested that in non-Medicaid households, medical costs used up scarce household dollars that otherwise would have gone to putting food on the table.
Even more disturbing, striking down Medicaid expansion cost a significant number of poor Americans their lives. Poor people without Medicaid are less likely to see doctors and get preventive care and are more likely to die early. A study published by the National Bureau of Economic Research in 2019 estimated that about 15,600 people had died who would not have if all fifty states had expanded their Medicaid programs when the ACA first took effect.
There is no knowing how much better the economic conditions of poor people would be if the Court had recognized them as a protected class. If they had been accorded even the intermediate-level scrutiny that women were, the Court might have struck down many aspects of the 1996 welfare reform law, which has drastically reduced the amount of welfare money available to the nation’s poor. It might have invalidated arbitrary limits on years of eligibility and the large disparities between states, which would make a particular difference for poor people in places like Wyoming that have very low rates of enrollment.
The change from AFDC to TANF has had a devastating—and little appreciated—impact on the finances of the poor. The number of people receiving benefits fell 75 percent between 1996 and 2014. “TANF was meant to ‘replace’ AFDC,” two academic experts said of the decline. “What it did in reality was essentially kill the U.S. cash welfare system.” The collapse of cash assistance has plunged many families into deep poverty. A study from the University of Michigan’s National Poverty Center found that from 1996 to 2011, the number of families living on less than $2 per person a day, a World Bank definition of poverty in developing nations, more than doubled, to nearly 1.5 million, including 2.8 million children. There have been questions surrounding estimates of how many Americans are living on less than $2 per day, but there is clearly a considerable amount of deep poverty in the post-AFDC era.
The Court’s antagonistic approach to poor people has hurt in another way: it has sent a message about how they should be treated by the political branches and society in general. Political scientists have argued that the Court can create “policy legitimacy” when it puts its authority behind a marginalized group seeking mainstream acceptance. There is some evidence that the Court’s decisions on such issues as school desegregation and abortion rights had a measurable impact on public opinion. The Court’s rulings that the poor do not have the kinds of constitutional rights that racial minorities, women, and other groups have, and its insistence that Congress and the states must have broad leeway in designing welfare programs, helped to create an environment in which it was easier to end the right to welfare and keep benefit levels well below the poverty line.
In 2017, the United Nations special rapporteur on extreme poverty and human rights toured the United States to evaluate the state of poverty. The special rapporteur, Philip Alston, found that 40 million Americans were in poverty and, of those, 18.5 million were in extreme poverty. He concluded that although the United States was one of the world’s richest nations, “neither its wealth nor its power nor its technology is being harnessed to address the situation in which 40 million people continue to live in poverty.” An Urban Institute study the same year gave a snapshot of the impact that poverty has on the lives of Americans in a single year. It found, among other things, that about 10 percent were behind on their rent or mortgage, and more than 1 percent were evicted or otherwise forced to move.
Something very important happened to the nation in the two weeks between the Court’s rulings in Goldberg v. Kelly and Dandridge v. Williams in the spring of 1970: the highest court in the land changed from one that expressed concern about poor people and their ability to survive to one that announced that such matters were “not the business of this Court.” In saying this to Linda Williams, the Court sent the same message to all of the nation’s poor—one it would repeat many times in the decades that followed. With the end of the Warren era and the rise of the Nixon era, the Court changed from being a force for equality for the poor to being a powerful driver of inequality. This would be true in areas that went well beyond poverty law.