There are books that take authors on new journeys and ones authors have lived with their whole lives. This book falls squarely in the second category. I grew up in the afterglow of the Warren Court, and I went to law school and became a public interest lawyer in large part because of its idealistic vision of the law. I left the law and became a journalist, to a significant extent, because the Court so drastically reversed direction after the Warren era ended.
I first formed many of the ideas in this book at Harvard College, where I was fortunate to study constitutional law with the legendary Archibald Cox, and at Harvard Law School, where I learned from many professors whose own views of what the law could be were shaped by the Warren Court, among them Gerald Frug, Lance Liebman, Laurence Tribe, Stephen Breyer, David Shapiro, Lloyd Weinreb, Susan Estrich, Charles Nesson, Daniel Meltzer, and Martha Minow.
As a lawyer for the Southern Poverty Law Center in Montgomery, Alabama, and the American Civil Liberties Union in New York, Alabama, and Connecticut, I saw firsthand what the law can do for those who need it the most. I worked alongside extraordinary people, including the ACLU’s Alabama team, which was working to establish the right to an adequate education in the state’s poorest school systems, after the Supreme Court let them down so profoundly in Rodriguez v. San Antonio Independent School District. There are no truer heirs to Earl Warren’s legacy than Olivia Turner, Bobby Segall, and Martha Morgan.
As a journalist at The New York Times and Time, I had the chance to write extensively about the Court and legal issues and to have my thoughts refined by impressive minds. At The New York Times, my appreciation to Dorothy Samuels, Gail Collins, Frank Rich, Carolyn Curiel, Brent Staples, Eduardo Porter, Teresa Tritch, Philip Taubman, Ethan Bronner, Adam Moss, Terry Tang, David Shipley, Francis X. Clines, Robert Semple, Carol Giacomo, Lawrence Downes, Philip Boffey, Verlyn Klinkenborg, and Eleanor Randolph.
At Time, I had the great pleasure of working with Walter Isaacson, Jim Kelly, Joelle Attinger, Priscilla Painton, John Stacks, Rick Hornik, Rick Stengel, Bill Saporito, Dan Goodgame, Josh Quittner, Jan Simpson, Richard Zoglin, Jim Gaines, Aisha Labi, Karl Taro Greenfeld, Daniel Eisenberg, Barbara Maddux, Vicki Rainert, Eric Roston, Michael Krantz, Tammy Drummond, Stacy Perman, Nadya Labi, Joel Stein, and Josh Tyrangiel.
In writing this book, I benefitted enormously from insightful journalism and legal scholarship. I would like to acknowledge, in particular, the work of Dahlia Lithwick, Jeffrey Toobin, Adam Winkler, Linda Greenhouse, Emily Bazelon, Adam Liptak, Charles Lane, Jeffrey Rosen, Joan Biskupic, Richard Hasen, Jacobus tenBroek, Edward Sparer, Charles Reich, Frank Michelman, Laurence Tribe, Lani Guinier, Laura Kalman, Peter Edelman, Erwin Chemerinsky, Charles Fried, Mark Tushnet, Ganesh Sitaraman, Bruce Allen Murphy, Peter Rubin, Donald Black, Suzanna Sherry, Margaret Jane Radin, Richard Posner, Eric Posner, Lee Epstein, William Landes, Cynthia Estlund, Julius Getman, Myron Orfield, Brian Fitzpatrick, Suzette Malveaux, Catherine Fisk, Elizabeth Bartholet, Imre Szalai, Michele Gilman, Arthur Miller, Morton Horwitz, John Pfaff, Paul Butler, Michelle Alexander, Kelly Strader, J. Mitchell Pickerill, Martha Davis, Felicia Kornbluh, Elizabeth Bussiere, Adam Lioz, Ezra Rosser, Henry Freedman, Clare Pastore, Melanie Abbott, and Julie Nice.
I drew on conversations with many of those impressive thinkers, as well as interviews and conversations with several of the justices—including my administrative law professor, Stephen Breyer—and a good number of Supreme Court law clerks. My special thanks to Walter Slocombe, for his recollections of Abe Fortas, and Ira Feinberg, who was with Thurgood Marshall at a critical time.
There is no better publishing house than Penguin Press, and it is my incredible good fortune that I have been able to work with the extraordinary Ann Godoff on this, our third book together. Ann’s brilliance spans the whole publishing process, from helping the author refine a book’s central ideas until they are just right, to strengthening arguments and improving sentences, to choosing the perfect cover and subtitle. My deep gratitude to her for doing all of these things for my book, and to Casey Denis, Colleen Boyle, Bruce Giffords, and the whole team at Penguin Press for their own invaluable work.
I was enormously lucky that I found my very wise and adept agent, Kris Dahl at ICM, for my first book, and that she has stuck with me through this one. My thanks, also, to the incomparable Josie Freedman of ICM’s west coast office, which arranged a movie deal for my last book, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. I am honored that the endlessly talented Dakota Johnson is bringing Carrie Buck’s story to the big screen.
Columbia Law School’s public interest program chose Imbeciles as the one book it recommended all incoming students read in the fall of 2019. My thanks to Ibrahim Diallo, Hannah Rosner, and Madeleine Kurtz, and to Jamal Greene, Rose Cuison-Villazor, and Elisabeth Benjamin for joining me at Columbia for a panel on the book.
My great appreciation also to Michael Waldman and Jeanine Chirlin and the entire staff of the Brennan Center for Justice at NYU Law School; Juliet Lapidos of The Atlantic; Lisa Lucas of the National Book Foundation; Amy Goodman of Democracy Now!; Marcy Euler and the Tucson Festival of Books; and Jane Kulow and the Virginia Festival of the Book for their support.
I had the honor of serving as a Pulitzer Prize juror for feature writing in 2018 and commentary in 2017, and I learned an enormous amount from fellow jurors Keith Campbell, Audrey Cooper, Rachel Morris, Eli Sanders, Paige Williams, Madeleine Blais, Jay Stowe, Manuela Hoelterhoff, and Danielle Henderson.
Friends were a great source of insights and support—and, often, food—at every stage. I’d like to thank Eileen Hershenov first, because she asked so many times to be listed first. Elizabeth Taylor has long been my partner in all things literary, and Paul Engelmayer, who has taught me so much about the law, generously read and commented on an early draft of this book. Also, with affection and gratitude: Elisabeth Benjamin, Caroline Arnold, Amy Chua, Loren Eng, Amy Gutman, Patti Galluzzi, Tina Smith, Maria Laurino, Elizabeth Glazer, Amy Schwartz, Carol Owens, David Propp, Lavea Brachman, Laura Haight, P. J. Posner, Michael Dubno, Dan Pool, Noah Benjamin-Pollak, Kathy Bishop, Kirk Swinehart, Claudia Dowling, Ed Barnes, and Hope Hamashige.
I am fortunate to go on an annual fishing trip, organized by the estimable Judge Engelmayer, that has for years produced far more witty banter, camaraderie, and intellectual musings than fish. For this, I’d like to thank Paul Engelmayer, Jim Rosenthal, Antony Blinken, Peter Mandelstam, Michael Abramowitz, Eric Washburn, Peter Vigeland, and Jacob Schlesinger.
I am grateful also to my family: Stuart Cohen, Noam Cohen, Aviva Michaelov, Harlan Cohen, and Kika and Nuli Cohen, who informed me not long ago that I am not only their uncle but their friend.
And finally, in writing this book I thought often of three people who left us too soon, and who never lost their outrage at what those at the top of society do to those at the bottom: my great friends Elaine Rivera and Chuck Young, both immensely talented journalists, and my remarkable mother, Judge Beverly Sher Cohen, whose kitchen walls were decorated not with images of food or drink, but rather with a poster bearing the injunction from Deuteronomy 16:20: “Justice, justice shalt thou pursue.”