NOTES

Introduction

Vance said a different woman: Vance v. Ball State University, 570 U.S. 421 (2013).

She also warned that the Court’s decision: Vance, 570 U.S. 421.

A jury ruled: Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009); Workplace Fairness: Has the Supreme Court Misinterpreted Laws Designed to Protect American Workers? Hearing Before the Senate Committee on the Judiciary, 111th Cong. (2009) (statement of Jack Gross), judiciary.senate.gov/download/testimony-of-grosspdf.

The dissenting liberal justices: Gross, 557 U.S. 167.

Ledbetter sued for sex discrimination: Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007); Lilly Ledbetter with Lanier Scott Isom, Grace and Grit: My Fight for Equal Pay and Fairness at Goodyear and Beyond (New York: Three Rivers Press, 2012), 15.

The ruling against Ledbetter: Ledbetter, 550 U.S. 618; Sheryl Gay Stolberg, “Obama Signs Equal-Pay Legislation,” New York Times, January 29, 2009.

“That is money,” he said: Workplace Fairness (statement of Jack Gross), judiciary.senate.gov/download/testimony-of-grosspdf.

It occurred to her that: Ledbetter, Grace and Grit, 265–66, 273.

When the South rose up: Brown v. Board of Education, 347 U.S. 483 (1954).

It expanded the rights: Miranda v. Arizona, 384 U.S. 436 (1966); Shapiro v. Thompson, 394 U.S. 618 (1969); Engel v. Vitale, 370 U.S. 421 (1962); Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 155.

By 1968, Richard Nixon: Edgar McManus and Tara Helfman, Liberty and Union: A Constitutional History of the United States (New York: Routledge, 2014), 488; Michael Tackett, “The Justice Who Changed a Way of Life,” Chicago Tribune, September 24, 2006; Ed Cray, Chief Justice: A Biography of Earl Warren (New York: Simon & Schuster, 1997), 497.

Warren, however, had a plan: Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (New York: Oxford University Press, 2017); Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979); Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge, Mass.: Belknap Press, 2000), 465; John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012), 89; Fred Graham, “Johnson Appoints Fortas to Head Supreme Court; Thornberry to Be Justice,” New York Times, June 27, 1968; G. Edward White, Earl Warren: A Public Life (New York: Oxford University Press, 1982), 142, 307.

Many of these initiatives: Cray, Chief Justice, 496.

In his first three years in office: San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

The role of one man: Fred P. Graham, “Profile of the ‘Nixon Court’ Now Discernible,” New York Times, May 24, 1972; John Ehrlichman, Witness to Power: The Nixon Years (New York: Simon & Schuster, 1982), 134; Woodward and Armstrong, The Brethren, 189; Jenkins, The Partisan, 103–4; Lesley Oelsner, “Harlan Dies at 72; On Court 16 Years,” New York Times, December 30, 1971.

Since January 1972: Nate Silver, “Supreme Court May Be the Most Conservative in Modern History,” FiveThirtyEight, March 29, 2012.

since 1969, Republicans: White House, “Presidents,” available at whitehouse.gov/about-the-white-house/presidents/.

An analysis conducted in 2014: Maureen Dowd, “The Supreme Court; Conservative Black Judge, Clarence Thomas, Is Named to Marshall’s Court Seat,” New York Times, July 2, 1991; David Stout, “Ceremony Follows Senate Vote Confirming Nomination, 78–22,” New York Times, September 30, 2005; Richard Berke, “The Supreme Court; The Overview; Clinton Names Ruth Ginsburg, Advocate for Women, to Court,” New York Times, June 15, 1993; David Leonhardt, “The Supreme Court Blunder That Liberals Tend to Make,” New York Times, June 2, 2014; Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, December 24, 2000; Stephanie Mencimer, “What the Cult of Ruth Bader Ginsburg Got Wrong,” Mother Jones, November 24, 2018; Michael Shear, “Supreme Court Justice Anthony Kennedy Will Retire,” New York Times, June 27, 2018.

Fortas’s forced resignation: Ron Elving, “What Happened with Merrick Garland in 2016 and Why It Matters Now,” NPR.org, June 29, 2018.

As President Trump said: Donald Trump (@realDonaldTrump), “THE SECOND AMENDMENT WILL NEVER BE REPEALED!,” Twitter, March 28, 2018, 5:52 a.m., twitter.com/realdonaldtrump/status/978932860307505153; Eileen Sullivan, “Trump Says Second Amendment ‘Will Never Be Repealed,’” New York Times, March 28, 2018.

In a 1940 case: Chambers v. Florida, 309 U.S. 227, 241 (1940); Alden Whitman, “Earl Warren, 83, Who Led High Court in Time of Vast Social Change, Is Dead,” New York Times, July 10, 1974.

Hollywood has yet to make: Brown, 347 U.S. 483; Gideon v. Wainwright, 372 U.S. 335 (1963); Shelby County v. Holder, 570 U.S. 529 (2013); IMDb, s.v. “Separate but Equal,” imdb.com/title/tt0102879/; IMDb, s.v. “Gideon’s Trumpet,” imdb.com/title/tt0080789/.

In the years after the war: Dred Scott v. Sandford, 60 U.S. 393 (1856); Plessy v. Ferguson, 163 U.S. 537 (1896).

During World War II: Lochner v. New York, 198 U.S. 45 (1905); Hammer v. Dagenhart, 247 U.S. 251 (1918); Adair v. United States, 208 U.S. 161 (1908); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 (1936); Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 232–34; Korematsu v. United States, 323 U.S. 214 (1944).

The justices have also: Roe v. Wade, 410 U.S. 113 (1973); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Bowers v. Hardwick, 478 U.S. 186 (1986); Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

The current Court: Nolan McCaskill, “Trump Releases Updated Short List of Potential Supreme Court Nominees,” Politico, November 11, 2017; Seth McLaughlin, “Kavanaugh a ‘Man of Integrity,’ Pence Tells Values Voter Summit,” Washington Times, September 22, 2018.

“These decisions are not the work”: Lee Epstein and Tonja Jacobi, “Super Medians,” Stanford Law Review 61, no. 1 (April 2010): 37, 69–72; Silver, “Supreme Court May Be the Most Conservative in Modern History;” Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2016), 4–5; Charles Fried, “Not Conservative,” Harvard Law Review Blog, July 3, 2018.

Poor people had always been seen: William Quigley, “Reluctant Charity: Poor Laws in the Original Thirteen States,” 31 University of Richmond Law Review 111 (1997); Edwards v. California, 314 U.S. 160 (1941); Fried, “Not Conservative.”

Four years later, it greatly increased: David Zarefsky, President Johnson’s War on Poverty: Rhetoric and History (Tuscaloosa: University of Alabama Press, 2005), xvii–xix; Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Goldberg v. Kelly, 397 U.S. 254 (1970).

In its opinion, the Court: Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

In a number of rulings: United States v. Carolene Products Co., 304 U.S. 144 (1938); Bertall L. Ross II and Su Li, “Measuring Political Power: Suspect Class Determinations and the Poor,” California Law Review 104 (2016): 323, 325.

It also decided that the poor: Dandridge v. Williams, 397 U.S. 471 (1970); Ross and Li, “Measuring Political Power,” 323, 325.

If Nixon had not: Rodriguez, 411 U.S. 1; Milliken v. Bradley, 418 U.S. 717 (1974); Lee Epstein, William Landes, and Richard Posner, “How Business Fares in the Supreme Court,” Minnesota Law Review 97 (2013): 1431, 1451.

That decision is likely: Janus v. AFSCME, 138 S. Ct. 2448 (2018).

It upheld strict voter ID laws: Shelby County v. Holder, 570 U.S. 529 (2013); Crawford v. Marion County Election Board, 553 U.S. 181 (2008); Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018); Nina Totenberg, “Supreme Court Upholds Controversial Ohio Voter-Purge Law,” All Things Considered, NPR, June 11, 2018.

These decisions have contributed: Stephen Smith, “The Rehnquist Court and Criminal Procedure,” University of Colorado Law Review 73, no. 4 (2002): 1337; John Gramlich, “America’s Incarceration Rate Is at a Two-Decade Low,” Pew Research Center Fact Tank, May 2, 2018, pewresearch.org/fact-tank/2018/05/02/americas-incarceration-rate-is-at-a-two-decade-low/; Utah v. Strieff, 136 S. Ct. 2056 (2016).

As a result of these rulings: Spencer Overton, “The Donor Class: Campaign Finance, Democracy, and Participation,” University of Pennsylvania Law Review 153, no. 1 (2004): 73.

It gave corporations: Brian Fitzpatrick, “The End of Class Actions?,” Arizona Law Review 57, no. 162 (2015); Jeffrey Fisher, “The Exxon Valdez Case and Regularizing Punishment,” Alaska Law Review 26, no. 1 (2009).

A New York Times analysis: Epstein, Landes, and Posner, “How Business Fares in the Supreme Court,” 1431, 1449, 1471; Jeffrey Rosen, “Supreme Court Inc.,” New York Times, March 16, 2008.

The richest 0.1 percent: Drew DeSilver, “U.S. Income Inequality on Rise for Decades, Is Now Highest Since 1928,” Pew Research Center Fact Tank, December 5, 2013; “Nine Charts About Wealth Inequality in America (Updated),” Urban Institute, apps.urban.org/features/wealth-inequality-charts/; Max Ehrenfreund, “Bernie Sanders Is Right: The Top 0.1 Percent Have as Much as the Bottom 90 Percent,” Washington Post, November 19, 2015; Chad Stone et al., “A Guide to Statistics on Historical Trends in Income Inequality,” Center on Budget and Policy Priorities, December 11, 2018; Facundo Alvaredo et al., World Inequality Report 2018, World Inequality Lab, 78, wir2018.wid.world/files/download/wir2018-full-report-english.pdf.

To “reverse these trends”: Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: Norton, 2013), 7.

The Supreme Court is rarely included: Emily Horton, “The Legacy of the 2001 and 2003 ‘Bush’ Tax Cuts,” Center on Budget and Policy Priorities, October 23, 2017; Dylan Scott and Alvin Chang, “The Republican Tax Bill Will Exacerbate Income Inequality in America,” Vox, December 4, 2017; Arloc Sherman, “After 1996 Welfare Law, a Weaker Safety Net and More Children in Deep Poverty,” Center on Budget and Policy Priorities, August 9, 2016; Dylan Matthews, “‘If the Goal Was to Get Rid of Poverty, We Failed’: The Legacy of the 1996 Welfare Reform,” Vox, June 20, 2016.

The Court’s campaign finance decisions: Alvaredo et al., World Inequality Report 2018, 8–20, 78.

Public health experts connect: Anna Bahney, “40% of Americans Can’t Cover a $400 Emergency Expense,” CNN, May 22, 2018; “Deaths of Despair: The Opioid Epidemic Is Just Part of the Problem,” Science Daily, September 27, 2018; Lenny Bernstein, “U.S. Life Expectancy Declines Again, a Dismal Trend Not Seen Since World War I,” Washington Post, November 29, 2018; Meilan Solly, “United States Drops 21 Spots in Global Life Expectancy Rankings,” Smithsonian, October 19, 2018.

That translates into more than: “Understand Food Insecurity,” Hunger and Health: Feeding America, hungerandhealth.feedingamerica.org/understand-food-insecurity/; Maia Szalavitz, “Income Inequality’s Most Disturbing Side Effect: Homicide,” Scientific American, November 1, 2018; “24 Million Americans—Poverty in the United States: 1969,” U.S. Department of Commerce, December 26, 1970; “What Is the Current Poverty Rate in the United States,” Center for Poverty Research, University of California at Davis, updated October 15, 2018.

“Once those are gone”: Ganesh Sitaraman, “Divided We Fall,” New Republic, April 10, 2017; “The Other Moore’s Law,” Economist, February 14, 2009.

“Economic growth that is spread”: Richard V. Reeves and Katherine Guyot, “Fewer Americans Are Making More Than Their Parents Did—Especially If They Grew Up in the Middle Class,” Brookings Institution, July 25, 2018; Raj Chetty et al., “The Fading American Dream: Trends in Absolute Income Mobility Since 1940” (working paper, National Bureau of Economic Research, Cambridge, Mass., 2016).

Chapter One: Protecting the Poor

The problem, Stancil said: Smith v. King, 277 F. Supp. 31 (M.D. Ala. 1967); King v. Smith, 392 U.S. 309, 309–16 (1968); Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007), 67; Henry Freedman, “Sylvester Smith, Unlikely Heroine: King v. Smith (1968),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 52, 56; Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973 (New Haven, Conn.: Yale University Press, 1993), 60; Walter Goodman, “The Case of Mrs. Sylvester Smith,” New York Times, August 25, 1968; Martin Garbus, Ready for the Defense (New York: Avon Books, 1971), 147–48.

Alabama’s top welfare official: Smith, 277 F. Supp. 31; King, 392 U.S. at 309–16; Kornbluh, Battle for Welfare Rights, 67; Freedman, “Sylvester Smith,” 52–54, 56; Davis, Brutal Need, 60; Goodman, “Case of Mrs. Sylvester Smith”; Garbus, Ready for the Defense, 147–48.

“Ain’t much he can do”: Freedman, “Sylvester Smith,” 51–52; Davis, Brutal Need, 60, 68; Garbus, Ready for the Defense, 148–49.

“If God had intended for me”: King, 392 U.S. at 309–16; Kornbluh, Battle for Welfare Rights, 67; Freedman, “Sylvester Smith,” 56; Davis, Brutal Need, 61; Goodman, “Case of Mrs. Sylvester Smith”; Garbus, Ready for the Defense, 149.

Nationwide, the numbers were far larger: Goodman, “Case of Mrs. Sylvester Smith”; Mark A. Graber, “The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory,” Ohio State Law Journal 58, no. 3 (1997): 787–88.

Smith also lost the minimal support: Freedman, “Sylvester Smith,” 56; Goodman, “Case of Mrs. Sylvester Smith.”

The rule put the welfare mother: Freedman, “Sylvester Smith,” 51.

Governor George Wallace had stood: Freedman, “Sylvester Smith,” 155.

The statute required states: Freedman, “Sylvester Smith,” 54–55, 61–62; Garbus, Ready for the Defense, 155, 184–85; Smith, 277 F. Supp. 31.

Marshall, the first black justice: King, 392 U.S. 309; Freedman, “Sylvester Smith,” 54–55, 62–63; Davis, Brutal Need, 68.

Alabama’s rule was invalid: Freedman, “Sylvester Smith,” 64; King, 392 U.S. 309.

“All responsible government agencies”: Freedman, “Sylvester Smith,” 54–55, 63, 65; King, 392 U.S. 309; Andrew Nolan, The Doctrine of Constitutional Avoidance: A Legal Overview, Congressional Research Service, CRS Report No. R43706, September 2, 2014; Graber, “Clintonification of American Law,” 787–88.

“The King decision is a salutary one”: C. Frank Goldsmith Jr., “Social Welfare—The ‘Man in the House’ Returns to Stay,” North Carolina Law Review 47 (1968): 228, 234–35; Garbus, Ready for the Defense, 203–8.

In 1938, in the obscure commercial case: United States v. Carolene Products, 304 U.S. 144, 152n4 (1938).

If a law imposed a special burden: Carolene Products, 304 U.S. at 152n4; Henry Rose, “The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question,” Nova Law Review 34 (2010): 407, 408–9; James Curry, Richard Riley, and Richard Battistoni, Constitutional Government: The American Experience (Eagen, Minn.: West Publishing, 2003), 282.

One factor it said: Carolene Products, 304 U.S. at 152n4.

Throughout American history: Rose, “The Poor as a Suspect Class,” 419–21; Kenji Yoshino, “The New Equal Protection,” Harvard Law Review 124, no. 3 (2011): 747, 756; Erin Blakemore, “Poorhouses Were Designed to Punish People for their Poverty,” History.com, January 30, 2018, history.com/news/in-the-19th-century-the-last-place-you-wanted-to-go-was-the-poorhouse.

Later in his presidency: David Kennedy, Freedom from Fear: The American People in Depression and War, 1929–1945 (New York: Oxford University Press, 1999), 469–70.

Edwards was convicted of violating: Edwards v. California, 314 U.S. 160, 184–85 (1941); Clare Pastore, “When Paupers Became People: Edwards v. California (1941),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 13–15, 18; Rose, “The Poor as a Suspect Class,” 407, 410–11.

“Poverty and immorality”: Edwards, 314 U.S. at 172–73, 177; Pastore, “When Paupers Became People,” 13–15, 18; Rose, “The Poor as a Suspect Class,” 410–11.

Jackson, however, had only his own vote: Edwards, 314 U.S. at 172–73, 177, 184–85.

As it happened, though: Jim Newton, Justice for All: Earl Warren and the Nation He Made (New York: Riverhead, 2006), 308; Carlton F. W. Larson, “What If Chief Justice Fred Vinson Had Not Died of a Heart Attack in 1953?: Implications for Brown and Beyond,” Indiana Law Review 45, no. 1 (2011): 131, 142; Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Vintage, 2005), 593–94, 618.

Eisenhower promised to nominate Warren: Newton, Justice for All, 248–56.

It was one of the great miscalculations: White, Earl Warren, 148–49, 152; Alden Whitman, “Earl Warren, 83, Who Led High Court in Time of Vast Social Change, Is Dead,” New York Times, July 10, 1974; Kluger, Simple Justice, 666; Bernard Schwartz, “Chief Justice Earl Warren: Super Chief in Action,” Tulsa Law Journal 33 (1977): 477.

Warren’s hero was Hiram Johnson: White, Earl Warren, 11–12, 21; Newton, Justice for All, 15–16.

He warned that, with the government: Whitman, “Earl Warren, 83”; Kluger, Simple Justice, 663–65; White, Earl Warren, 49, 73–75; Newton, Justice for All, 35–40, 69–71.

At a 1943 governors’ conference: Whitman, “Earl Warren, 83”; Kluger, Simple Justice, 663–65; White, Earl Warren, 49, 73–75, 153; Newton, Justice for All, 158–59, 184–86.

Potter Stewart, a moderate conservative: Brown, 347 U.S. 483; Kermit Hall, “The Warren Court: Yesterday, Today, and Tomorrow,” Indiana Law Review 28, no. 2 (1995): 309; Kluger, Simple Justice, 598; Bernard Schwartz, The Warren Court: A Retrospective (New York: Oxford University Press, 1996), 297.

So Black’s strong words: Griffin v. Illinois, 351 U.S. 12, 17–19 (1956).

TenBroek argued that these durational residency requirements: Kornbluh, Battle for Welfare Rights, 30; Jacobus tenBroek, The Constitution and the Right of Free Movement (New York: National Travelers Aid Association, 1955); Stacie Dubnow, “Fifty Years After tenBroek: The Right to Live in the World Today and Tomorrow,” Braille Monitor, February 2019, stage.nfb.org/sites/stage.nfb.org/files/publications/bm/bm19/bm1902/bm190203.htm.

TenBroek suggested that poverty: Kornbluh, Battle for Welfare Rights, 30; Davis, Brutal Need, 20–21; Michael Grossberg and Christopher Tomlins, eds., The Cambridge History of Law in America, vol. 3 (Cambridge, England: Cambridge University Press, 2008), 367; Jacobus tenBroek, “California’s Dual System of Family Law: Its Origin, Development and Present Status,” Stanford Law Review 16, no. 2 (1964): 257; Jacobus tenBroek, “California’s Dual System of Family Law: Its Origin, Development and Present Status: Part II,” Stanford Law Review 16, no. 4 (1964): 900; Jacobus tenBroek, “California’s Dual System of Family Law: Its Origin, Development and Present Status: Part III,” Stanford Law Review 17, no. 4 (1965): 614; Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge, Mass.: Belknap Press, 2000), 449–50.

President Kennedy embraced Harrington’s call to arms: David Zarefsky, President Johnson’s War on Poverty: Rhetoric and History (Tuscaloosa: University of Alabama Press, 2005), xvii–xix; Maurice Isserman, “Michael Harrington: Warrior on Poverty,” New York Times, June 19, 2009.

For the first time since he became chief justice: Russell W. Galloway, Justice for All?: The Rich and Poor in Supreme Court History, 1790–1990 (Durham, N.C.: Carolina Academic Press, 1991), 138; Powe, The Warren Court, 210–11.

All five understood from personal experience: Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion (Boston: Houghton Mifflin, 2010), 4–6, 8–9, 16–23; Powe, The Warren Court, 211; Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (New York: Oxford University Press, 2017), 47; Howard Ball, Howard L. Black: Cold Steel Warrior (New York: Oxford University Press, 1996), 40.

In ruling for Gideon: Gideon v. Wainwright, 372 U.S. 335 (1963); Michael Mushlin, “Gideon v. Wainwright Revisited: What Does the Right to Counsel Guarantee Today,” Pace Law Review 10 (1990): 327, 329–30; Anthony Lewis, “Supreme Court Extends Ruling on Free Counsel,” New York Times, March 19, 1963.

Sounding like tenBroek: Douglas v. California, 372 U.S. 353, 355 (1963); Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Jerold Israel, “Gideon v. Wainwright: The ‘Art’ of Overruling,” in The Supreme Court and the Judicial Function, ed. Philip Kurland (Chicago: University of Chicago Press, 1975), 73–74, 74n7.

The march’s leaders later unveiled: Martin Luther King Jr., “I Have a Dream” speech (August 28, 1963, Washington, D.C.), National Archives, archives.gov/files/press/exhibits/dream-speech.pdf; William Forbath, “Constitutional Welfare Rights: A History, Critique and Reconstruction,” Fordham Law Review 69 (2001): 1821, 1842, 1850–51; A. Philip Randolph and Bayard Rustin, “How the Civil-Rights Movement Aimed to End Poverty,” 1967, reprinted in Atlantic (King Issue), April 2018, theatlantic.com/magazine/archive/2018/02/a-freedom-budget-for-all-americans-annotated/557024/.

Congress began passing laws establishing: Lyndon Johnson, Annual Message to Congress on the State of the Union (January 8, 1964, Washington, D.C.), Lyndon Baines Johnson Presidential Library, lbjlibrary.net/collections/selected-speeches/november-1963-1964/01-08-1964.html.

Welfare recipients, he insisted: Charles Reich, “The New Property,” Yale Law Journal 73 (1964): 733, 783, 786.

In 1963, after law school: David Margolick, “Edward Sparer, 55; Legal Advocate for the Poor,” New York Times, June 25, 1983; Davis, Brutal Need, 22–23, 26–27, 30; Gary Smith, “Remembering Edward Sparer: An Enduring Vision for Legal Services,” Clearinghouse Review 39, no. 5–6 (2005): 329, 330; Sylvia A. Law, “Edward V. Sparer,” University of Pennsylvania Law Review 132, no. 3 (1984): 425.

Sparer’s list included the right to privacy: Davis, Brutal Need, 34–36; Edward Sparer, “The Role of the Welfare Client’s Lawyer,” UCLA Law Review 12 (1965): 361, 366–67; Grossberg and Tomlins, Cambridge History, 368.

The mission of this new class: Elizabeth Bussiere, (Dis)Entitling the Poor: The Warren Court, Welfare Rights, and the American Political Tradition (University Park: Penn State University Press, 1997), 95; R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, D.C.: Brookings Institution Press, 1994), 65; Kornbluh, Battle for Welfare Rights, 69–73; Bryant Garth, Neighborhood Law Firms for the Poor: A Comparative Study of Recent Developments in Legal Aid and in the Legal Profession (Rockville, Md.: Sijthoff & Noordhoff, 1980), 24.

In holding that New York State: Freedman, “Sylvester Smith,” 55; Anderson v. Burson, 300 F. Supp. 401 (N.D. Ga. 1968); Israel Shenker, “Guarantee of ‘Right to Live’ Is Urged,” New York Times, September 28, 1969; Rothstein v. Wyman, 303 F. Supp. 339, 346 (S.D.N.Y 1969).

“We won the vast majority”: Ezra Rosser, introduction to The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 3; Patricia Wald, “Ten Admonitions for Legal Services Advocates Contemplating Federal Litigation,” Clearinghouse Review, May 1993, 11–12.

Fortas’s views on the law: Kalman, Long Reach of the Sixties, 60–67.

“Lines drawn on the basis”: Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966); Bussiere, (Dis)Entitling the Poor, 89.

In Connecticut, welfare recipients: Forbath, “Constitutional Welfare Rights,” 1850–54; Kornbluh, Battle for Welfare Rights, 14–16, 48–50; Grossberg and Tomlins, Cambridge History, 367.

Under the leadership of George Wiley: Davis, Brutal Need, 43–45.

King described the Poor People’s Campaign: Sylvie Laurent, King and the Other America: The Poor People’s Campaign and the Quest for Economic Equality (Oakland: University of California Press, 2019), 12, 103–4; Martin Luther King, Jr. Encyclopedia (King Institute, Stanford University), kinginstitute.stanford.edu/encyclopedia/poor-peoples-campaign.

The other four justices were somewhere between: Wil Haygood, Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America (New York: Knopf, 2015), 15; Bussiere, (Dis)Entitling the Poor, 101.

When Marshall took his seat: Fred P. Graham, “President Sees Marshall Take Supreme Court Seat,” New York Times, October 3, 1967; C. Frank Goldsmith Jr., “Social Welfare—The ‘Man in the House’ Returns to Stay,” North Carolina Law Review 47 (1968): 235

Johnson did not ask: Kalman, Long Reach of the Sixties, 125; Newton, Justice for All, 506–7.

“As a Southerner”: Laura Kalman, Abe Fortas: A Biography (New Haven, Conn.: Yale University Press, 1992), 10, 12; Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (New York: William Morrow, 1988), 4; Abe Fortas, “March to Decency,” New York Times, July 18, 1972.

Fortas accepted a teaching position: Kalman, Abe Fortas, 10, 17, 25, 67.

Douglas would later say: Kalman, Abe Fortas, 136, 182–83, 200–202; Martin Tolchin, “How Johnson Won Election He’d Lost,” New York Times, February 11, 1990.

Fortas continued to advise Johnson: Kalman, Abe Fortas, 217, 240–41; Murphy, Fortas, 234.

One of his law clerks recalled: Kalman, Abe Fortas, 250; Tinker v. Des Moines School District, 393 U.S. 503 (1969).

Thornberry, a self-made son: John C. Jeffries, Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994), 223; Fred Graham, “Johnson Appoints Fortas to Head Supreme Court; Thornberry to Be Justice,” New York Times, June 27, 1968; Kalman, Long Reach of the Sixties, 129–30, 140–179; Robert McG. Thomas Jr., “Homer Thornberry, Appeals Judge, Dies at 86,” New York Times, December 13, 1995.

He overestimated how many Democratic votes: Kalman, Long Reach of the Sixties, 126–29; Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979); Powe, The Warren Court, 465; John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012), 89; Graham, “Johnson Appoints Fortas”; White, Earl Warren, 142, 307; Newton, Justice for All, 492.

The cronyism charge: Kalman, Long Reach of the Sixties, 126–29; Pat Buchanan, “Q&A with Pat Buchanan,” C-SPAN, July 24, 2014, www.c-span.org/video/?320563-1/qa-pat-buchanan; Patrick J. Buchanan, The Greatest Comeback: How Richard Nixon Rose from Defeat to Create the New Majority (New York: Crown Forum, 2014); Jeffries, Justice Lewis F. Powell, Jr., 223; Christine Compston, Earl Warren: Justice for All (New York: Oxford University Press, 2001), 140.

Patrick Buchanan, a top aide: Murphy, Fortas, 444; Kalman, Long Reach of the Sixties, 156–57; Buchanan, “Q&A with Pat Buchanan”; Buchanan, The Greatest Comeback, 275.

James Eastland of Mississippi: Kalman, Long Reach of the Sixties, 145; Kyle Longley, LBJ’s 1968: Power, Politics, and the Presidency in America’s Year of Upheaval (Cambridge, England: Cambridge University Press, 2018), 183.

That struck many senators: Murphy, Fortas, 380–90.

Other justices taught classes: Jeffries, Justice Lewis F. Powell, Jr., 223; Kalman, Long Reach of the Sixties, 66–67.

He “wanted the Fortas nomination”: Kalman, Long Reach of the Sixties, 126–29, 160–61, 162–64, 173–76; Linda Greenhouse, “Ex-Justice Abe Fortas Dies at 71; Shaped Historical Rulings on Rights,” New York Times, April 7, 1982; Laura Kalman, “Abe Fortas: Symbol of the Warren Court?,” in The Warren Court in Political and Judicial Perspective, ed. Mark Tushnet (Charlottesville: University of Virginia Press, 1993), 155–68; Newton, Justice for All, 492; Jeffries, Justice Lewis F. Powell, Jr., 223; Calvin Woodward, “Fact Check: Republicans Thwarted Supreme Court Picks Too,” Chicago Tribune, April 2, 2017; Charles Babington, “Filibuster Precedent? Democrats Point to ’68 and Fortas,” Washington Post, March 18, 2005; “Filibuster and Cloture,” U.S. Senate, senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm.

He would later call: Kalman, Long Reach of the Sixties, 175–76; Longley, LBJ’s 1968.

“As I sat listening to him”: John Ehrlichman, Witness to Power: The Nixon Years (New York: Simon & Schuster, 1982), 115; David Stout, “John D. Ehrlichman, Nixon Aide Jailed for Watergate, Dies at 73,” New York Times, February 16, 1999; John Dean, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court (New York: Free Press, 2002), 5.

The Justice Department began: Kalman, Long Reach of the Sixties, 188–89; Dean, The Rehnquist Choice, 1–2, 5–9.

There was no rule: Woodward and Armstrong, The Brethren, 14–17; Powe, The Burger Court, 478; Jenkins, The Partisan, 91–92, 164; Kalman, Long Reach of the Sixties, 188–89; Kalman, Abe Fortas, 324–25, 360–62; Dean, Rehnquist Choice, 1–2, 5–9; Fred Graham, “Judiciary Group Bars U.S. Judges from Taking Fees,” New York Times, June 11, 1969; Frank, “Conflict of Interest,” 744, 754; Walter Slocombe (former law clerk to Abe Fortas), interview with the author, October 5, 2018; Abe Fortas to Earl Warren, May 14, 1969, reprinted in Robert Shogan, A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (Indianapolis: Bobbs-Merrill, 1972), 279–82.

nor had Fortas violated: Woodward and Armstrong, The Brethren, 14–17; Powe, The Burger Court, 478; Jenkins, The Partisan, 91–92, 164; Kalman, Long Reach of the Sixties, 188–89; Kalman, Abe Fortas, 324–25, 360–62; Dean, Rehnquist Choice, 1–2, 5–9; Graham, “Judiciary Group Bars U.S. Judges from Taking Fees”; Frank, Conflict of Interest,” 744, 754; Slocombe, interview, October 5, 2018; Murphy, Fortas, 208–9; 552; Fortas to Warren, May 14, 1969, in Shogan, A Question of Judgment, 279–82.

Mitchell plotted against Fortas: Woodward and Armstrong, The Brethren, 14–17; Powe, The Burger Court, 478; Jenkins, The Partisan, 91–92, 164; Kalman, Long Reach of the Sixties, 188–89; Dean, Rehnquist Choice, 5, 8–9; Murphy, Fortas, 549–51.

The confirmation, however: Murphy, Fortas, 555–56.

Rehnquist prepared a memorandum: Woodward and Armstrong, The Brethren, 14–17; Powe, The Burger Court, 478; Jenkins, The Partisan, 91–92, 164; Kalman, Long Reach of the Sixties, 188–89; Dean, Rehnquist Choice, 6–7; Murphy, Fortas, 555; Fred P. Graham, “Inquiry on Fortas Described in Book,” New York Times, April 17, 1972.

Mitchell’s pursuit of Agger: Woodward and Armstrong, The Brethren, 14–17; Jeffries, Justice Lewis F. Powell, Jr., 224; Jenkins, The Partisan, 93; Kalman, Abe Fortas, 366; Dean, Rehnquist Choice, 10.

Some of his old Republican enemies: Murphy, Fortas, 556–60.

He would not want to end his tenure: Woodward and Armstrong, The Brethren, 14–17; Jeffries, Justice Lewis F. Powell, Jr., 224; Jenkins, The Partisan, 93; Kalman, Abe Fortas, 366–67; Dean, Rehnquist Choice, 9; Murphy, Fortas, 563; Ed Cray, Chief Justice: A Biography of Earl Warren (New York: Simon & Schuster, 1997), 509–10.

Mitchell and Warren met: Woodward and Armstrong, The Brethren, 15–17; Jeffries, Justice Lewis F. Powell, Jr., 224; Jenkins, The Partisan, 93; Kalman, Abe Fortas, 366–68; Kalman, Long Reach of the Sixties, 185, 192–93; Dean, Rehnquist Choice, 5, 9.

According to Dean: Dean, Rehnquist Choice, 9; Ehrlichman, Witness to Power, 116; Murphy, Fortas, 566–68; Shogan, A Question of Judgment.

After the unpleasantness: Woodward and Armstrong, The Brethren, 15–17; Jeffries, Justice Lewis F. Powell, Jr., 224; Jenkins, The Partisan, 93; Lesley Oelsner, “Mitchell, Haldeman, Ehrlichman Are Sentenced to 21/2 to 8 Years, Mardian to 10 Months to 3 Years,” New York Times, February 22, 1975; Kalman, Long Reach of the Sixties, 193–95; “Slander by Indirection” (editorial), New York Times, May 14, 1969; Dean, Rehnquist Choice, 9; Slocombe, interview, October 5, 2018.

In an editorial: Woodward and Armstrong, The Brethren, 15–17; Jeffries, Justice Lewis F. Powell, Jr., 224; Murphy, Fortas, 570; Kalman, Abe Fortas, 366–68; Kalman, Long Reach of the Sixties, 183, 192–93; “Slander by Indirection” (editorial), New York Times; Dean, Rehnquist Choice, 5, 9; Fred Graham, “Mitchell Confirms That He Gave Warren ‘Certain Information’ About Fortas,” New York Times, May 13, 1969.

The following day, May 14: Murphy, Fortas, 570–73.

“He had persuaded Abe Fortas to resign”: Kalman, Abe Fortas, 375–76; Ehrlichman, Witness to Power, 116; Slocombe, interview, October 5, 2018; Cray, Chief Justice, 510; Murphy, Fortas, 570.

“Mitchell’s bluff had succeeded”: Woodward and Armstrong, The Brethren, 15–17; Jeffries, Justice Lewis F. Powell, Jr., 224; Jenkins, The Partisan, 93; Dean, Rehnquist Choice, 10–11.

He concluded that: Murphy, Fortas, 592–93.

In the old English model: Shapiro v. Thompson, 394 U.S. 618 (1969); Elisa Minoff, “Legal Services Attorneys and Migrant Advocates Join Forces: Shapiro v. Thompson (1969),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 73, 82, 84.

If the Court took either route: Henry Rose, “The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question,” Nova Law Review 34 (2010): 407, 408–9; Israel Shenker, “Guarantee of ‘Right to Live’ Is Urged,” New York Times, September 28, 1969.

If the Court accepted either of these arguments: Edwards v. California, 314 U.S. 160 (1941); Bussiere, (Dis)Entitling the Poor, 103–6.

The Court struck down: Shapiro v. Thompson, 394 U.S. 618.

His parents had been born: Stern and Wermiel, Justice Brennan, 4–8.

He quickly became a pillar: Stern and Wermiel, Justice Brennan, 4–6, 8–9, 16–23, 418.

holding that Connecticut’s durational residency: Shapiro, 394 U.S. 618; Bussiere, “Failure of Constitutional Welfare Rights,” 116.

On that point they were right: Bussiere, (Dis)Entitling the Poor, 102–3.

The result was a decision: Bussiere, (Dis)Entitling the Poor, 103.

Philip Kurland, a University of Chicago law professor: Shapiro, 394 U.S. at 627; Minoff, “Legal Services Attorneys,” 84; Bussiere, (Dis)Entitling the Poor, 103–4, 120; Bussiere, “Failure of Constitutional Welfare Rights,” 105, 115, 117, 121; Philip Kurland, “The Judicial Road to Social Welfare,” Social Service Review 48, no. 4 (1974): 480, 490.

During the New Deal: A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 (1936); National Labor Relations Board v. Mackay Radio & Telegraph, 304 U.S. 333 (1938).

The Court ruled: Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

He also expressed concern: Sniadach, 395 U.S. at 341–42.

As he stepped down: Whitman, “Earl Warren, 83.”

When asked what had been: Schwartz, “Chief Justice Earl Warren,” 477–78; Whitman, “Earl Warren, 83”; White, Earl Warren, 148–49, 152; 4; Kluger, Simple Justice, 666.

Burger “wanted a seat”: Robert B. Semple Jr., “Warren E. Burger Named Chief Justice by Nixon; Now on Appeals Bench,” New York Times, May 22, 1969; Ehrlichman, Witness to Power, 114.

When Eisenhower won: Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2016), 347–48; Linda Greenhouse, “Warren E. Burger Is Dead at 87; Was Chief Justice for 17 Years,” New York Times, June 26, 1995; Peters v. Hobby, 349 U.S. 331 (1955); Woodward and Armstrong, The Brethren, 30; The Supreme Court Justices: A Biographical Dictionary, ed. Melvin I. Urofsky (Oxford, England: Taylor & Francis, 1994), s.v. “Warren Earl Burger,” 69.

“If I were to stand still”: Kalman, Long Reach of the Sixties, 187.

During the visit, Burger urged: Woodward and Armstrong, The Brethren, 6–7; Kalman, Long Reach of the Sixties, 187; Greenhouse, “Warren E. Burger Is Dead”; Ehrlichman, Witness to Power, 114.

“RN can only straighten”: Jeff Shesol, “Opening the Door to a Conservative Court,” New York Times, June 22, 2016; Woodward and Armstrong, The Brethren, 14, 20, 22; “Senate Confirms Burger by 74 to 3,” New York Times, June 10, 1969; Semple, “Warren E. Burger Named Chief Justice.”

Other progressive legal scholars: Shenker, “Guarantee of ‘Right to Live’”; Grossberg and Tomlins, Cambridge History, 369; Davis, Brutal Need, 37–38.

That guarantee could include: Frank I. Michelman, “Foreword: On Protecting the Poor Through the Fourteenth Amendment,” Harvard Law Review 83, no. 1 (1969): 13; Samuel Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193; Frank Michelman, interview with the author, September 11, 2017.

Herbert Wechsler, an eminent constitutional law professor: Michelman, “On Protecting the Poor,” 35; Warren and Brandeis, “Right to Privacy,” 193; Michelman, interview, September 11, 2017.

Mobilization for Youth’s Legal Unit: Melanie Abbott, “Dignity and Passion: Goldberg v. Kelly (1970),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 94.

When the caseworker learned: Abbott, “Dignity and Passion,” 94; Stern and Wermiel, Justice Brennan, 339–40.

The city, for its part: Michelman, “On Protecting the Poor”; Charles Reich, “The New Property,” 733.

The Court found it in: Stern and Wermiel, Justice Brennan, 338–39.

Brennan said the Due Process Clause: Goldberg v. Kelly, 397 U.S. 254, 264 (1970).

With a single ruling: Mark Stern, “Social Policy: History (1950–1980), Encyclopedia of Social Work (2019), available at https://www.oxfordbibliographies.com/view/document/obo-9780195389678/obo-9780195389678-0223.xml.

It was now viewing poverty: Goldberg, 397 U.S. at 265; Rosser, introduction to Poverty Law Canon, 4.

The decision was a declaration: Goldberg, 397 U.S. at 265; Rosser, introduction to Poverty Law Canon, 4.

The fifth vote Brennan won: Goldberg, 397 U.S. at 265.

In the midst of one of the greatest victories: Goldberg, 397 U.S. at 279; Wheeler v. Montgomery, 397 U.S. 280, 282 (1970) (Burger, C.J., dissenting) (dissent also applied to the related case of Goldberg v. Kelly); Wheeler, 397 U.S. at 282 (Stewart, J., dissenting) (dissent also applied to the related case of Goldberg v. Kelly); David Rosenbloom, Rosemary O’Leary, and Joshua Chanin, Public Administration and Law, 3rd ed. (Boca Raton, Fla.: CRC Press, 2010), 140; Woodward and Armstrong, The Brethren, 70; Galloway, Justice for All?, 144.

Chapter Two: Turning Against the Poor

It was, instead: Elizabeth Bussiere, “The Failure of Constitutional Welfare Rights,” Political Science Quarterly 109, no. 1 (1994): 123; Dandridge v. Williams, 397 U.S. 471 (1970).

The cap meant that small families: Julie Nice, “A Sweeping Refusal of Equal Protection: Dandridge v. Williams (1970),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 135–36; Williams v. Dandridge, 297 F. Supp. 450, 450–55 (D. Md. 1968); Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973 (New Haven, Conn.: Yale University Press, 1993), 119; Dandridge, 397 U.S. 471.

Nationally, the average AFDC benefits: Mollie Orshansky, “Counting the Poor: Another Look at the Poverty Profile,” Social Security Bulletin 10 (January 1965): 3; Williams, 297 F. Supp. 450; James Jennings, Understanding the Nature of Poverty in Urban America (Westport, Conn.: Greenwood Publishing Group, 1994), 75.

When Maryland adopted its maximum grant rule: C. Thomas Dienes, “To Feed the Hungry: Judicial Retrenchment in Welfare Adjudication,” California Law Review 58 (1970): 555, 556–58; Nice, “A Sweeping Refusal,” 135–6; Collins v. State Board of Social Welfare, 81 N.W.2d 4, 135–36 (Iowa 1957); Robert Cover, “Federal Judicial Review of State Welfare Practices,” Columbia Law Review 67 (1967): 84, 87–88; W. Michael Mayock, “Redefining Federal Largess Through State Maximum Grant Regulations: Dandridge v. Williams,” Loyola of Los Angeles Law Review 4 (1971): 182, 184–85.

The maximum grant cap: Dandridge, 397 U.S. 471; Davis, Brutal Need, 130–131; Mayock, “Redefining Federal Largess,” 186.

The poverty law movement, however: Elizabeth Bussiere, (Dis)Entitling the Poor: The Warren Court, Welfare Rights, and the American Political Tradition (University Park: Penn State Press, 2010), 101, 107; Davis, Brutal Need, 120; Nice, “A Sweeping Refusal,” 135.

Even if the Court did not recognize a right to subsistence: Bussiere, (Dis)Entitling the Poor, 108–9; Nice, “A Sweeping Refusal,” 142–45.

That would have been similar: Bussiere, (Dis)Entitling the Poor, 108–9; Nice, “A Sweeping Refusal” 145.

On this new Burger Court: Dandridge, 397 U.S. at 483–86.

He practiced at white-shoe law firms: John MacKenzie, “Potter Stewart Is Dead at 70, Was on High Court 23 Years,” New York Times, December 8, 1985; Ernest Kolowrat, Hotchkiss: A Chronicle of an American School (New York: New Amsterdam Books, 1998) 33; Joel Jacobsen, “Remembered Justice: The Background, Early Career and Judicial Appointments of Justice Potter Stewart,” Akron Law Review 35 (2002): 227, 230–35.

Therefore, he said: Dandridge, 397 U.S. at 484–86.

“The problems of government”: Dandridge, 397 U.S. at 485.

As Stewart saw it: Dandridge, 397 U.S. at 476–77.

Using language that signaled: Dandridge, 397 U.S. at 487.

Marshall said that Maryland had not: Dandridge, 397 U.S. at 490–508 (Douglas, J., dissenting); Dandridge, 397 U.S. at 508–30 (Marshall, J., dissenting); John C. Jeffries, Justice Lewis F. Powell, Jr. (New York: Scribner’s Sons, 1994), 259.

“The Constitution may impose”: Bussiere, “Failure of Constitutional Welfare Rights,” 126; Dandridge, 397 U.S. at 487.

As a result of the decision: Mayock, “Redefining Federal Largess,” 205.

If the Court had been willing: Julie Nice, “No Scrutiny Whatsoever: Deconstitutionalization of Poverty Law, Dual Rules of Law & Dialogic Default,” Fordham Urban Law Journal 35 (2008): 629; Peter Edelman, “Dandridge v. Williams Redux: A Look Back from the Twenty-First Century,” Drake Law Review 60 (2012): 981; James v. Valtierra, 402 U.S. 137, 145 (1971) (Marshall, J., dissenting); Nice, “A Sweeping Refusal,” 149.

Nixon was looking: Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (New York: Oxford University Press, 2017), 211, 214–15, 231, 237; Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979), 63; Gary Mormino, “Nixon’s Southern Court Strategy,” Tampa Bay Times, March 11, 2016; Jeffries, Justice Lewis F. Powell, Jr., 225–26; John Ehrlichman, Witness to Power: The Nixon Years (New York: Simon & Schuster, 1982), 118.

Rehnquist, the assistant attorney general: Kalman, Long Reach of the Sixties, 211, 214–15, 231, 237; Woodward and Armstrong, The Brethren, 63; Mormino, “Nixon’s Southern Court Strategy”; Jeffries, Justice Lewis F. Powell, Jr., 225–26.

Thinking the confirmation vote: Kalman, Long Reach of the Sixties, 214–15, 231, 226, 237; Woodward and Armstrong, The Brethren, 63; Mormino, “Nixon’s Southern Court Strategy”; Jeffries, Justice Lewis F. Powell, Jr., 225–26.

“They are entitled”: Kalman, Long Reach of the Sixties, 214–15, 228, 231, 237; Woodward and Armstrong, The Brethren, 63; Mormino, “Nixon’s Southern Court Strategy”; Rick Perlstein, “The Southern Strategist,” New York Times Magazine, December 30, 2007; “Carswell Disavows ’48 Speech Backing White Supremacy,” New York Times, January 22, 1970.

He was being forced: Mormino, “Nixon’s Southern Court Strategy”; Richard Reeve, Nixon: Alone in the White House (New York: Simon & Schuster, 2002), 186; John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012), 101; Ehrlichman, Witness to Power, 128–29; Jonathan Aitken, Nixon: A Life (New York: Simon & Schuster, 2015), 465.

Top Justice Department lawyers: Woodward and Armstrong, The Brethren, 100–103; Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Times Books, 2005), 47.

The replacement of Fortas with Blackmun: Warren Weaver Jr., “Blackmun Approved 94–0; Nixon Hails Vote by Senate,” New York Times, May 13, 1970; Fred Graham, “Blackmun Is Sworn In as 98th Justice,” New York Times, June 30, 1970; Woodward and Armstrong, The Brethren, 62–3, 100–103, 144; Kalman, Long Reach of the Sixties, 247–48; Greenhouse, Becoming Justice Blackmun, 62–63.

Rarick inserted purportedly incriminating documents: John Dean, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court (New York: Free Press, 2002), 24; Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion (Boston: Houghton Mifflin, 2010), 319; Michael Newton, White Robes and Burning Crosses: A History of the Ku Klux Klan from 1866 (Jefferson, N.C.: McFarland & Co., 2014), 162.

There was little left: Stern and Wermiel, Justice Brennan, 319–23.

Douglas, who was a committed environmentalist: Sierra Club v. Morton, 405 U.S. 727 (1972); United States v. O’Brien, 391 U.S. 367 (1968); Woodward and Armstrong, The Brethren, 14; Stern and Wermiel, Justice Brennan, 319.

FBI director J. Edgar Hoover: Woodward and Armstrong, The Brethren, 14; “F.B.I. Kept Close Watch on Douglas,” New York Times, July 22, 1984; Joshua Kastenberg, “Safeguarding Judicial Integrity During the Trump Presidency: Richard Nixon’s Attempt to Impeach Justice William O. Douglas and the Use of National Security as a Case Study,” Campbell Law Review 40 (2018): 1, 132–33; Ehrlichman, Witness to Power, 116, 122; Dean, Rehnquist Choice, 24–25.

Ford held up an issue: Woodward and Armstrong, The Brethren, 87; Gerald R. Ford, “House Floor Speech: Impeach Justice Douglas, April 15, 1970,” Box D29, Gerald R. Ford Congressional Papers, Gerald R. Ford Presidential Library, fordlibrarymuseum.gov/library/document/0054/4526271.pdf; Kenneth Davis, “The History of American Impeachment,” Smithsonian.com, June 12, 2017; Kastenberg, “Safeguarding Judicial Integrity,” 136–37; Ehrlichman, Witness to Power, 122; Dean, Rehnquist Choice, 27.

Ford was unable: Kastenberg, “Safeguarding Judicial Integrity,” 167; Ehrlichman, Witness to Power, 130; Dean, Rehnquist Choice, 26.

Nixon took comfort: Ehrlichman, Witness to Power, 130–33

Marshall told a Navy officer: Stuart Taylor Jr., “Marshall Puts Reagan at ‘Bottom’ Among Presidents on Civil Rights,” New York Times, September 9, 1987.

the lawyer she spoke to: Michele Estrin Gilman, “Privacy as a Luxury Not for the Poor: Wyman v. James (1971),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 153, 156

The plaintiffs cooperated: Gilman, “Privacy as a Luxury,” 155–56; Edward Sparer, “The Role of the Welfare Client’s Lawyer,” UCLA Law Review 12 (1965): 366–67.

A three-judge federal district court: Gilman, “Privacy as a Luxury,” 157–58; Wyman v. James, 400 U.S. 309 (1971); Marcia Coyle, The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2013), 15.

Blackmun, in his majority opinion: Wyman, 400 U.S. at 317–18; Jordan Budd, “A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home,” Indiana Law Journal 85 (2010): 355, 368–69; Greenhouse, Becoming Justice Blackmun, 63.

Now, with the steadily forming conservative majority: Wyman, 400 U.S. at 347.

The provision, Article 34: James, 402 U.S. 137; Liam Dillon, “A Dark Side to the California Dream: How the State Constitution Makes Affordable Housing Hard to Build,” Los Angeles Times, February 3, 2019.

Poor people eligible for public housing sued: Dillon, “Dark Side to the California Dream”; Thomas Mizo, “Constitutional Law—Equal Protection—Mandatory Referendum on Low-Income Housing—James v. Valtierra,” Boston College Law Review 13 (1972): 603–4.

By the same logic: Mizo, “Constitutional Law—Equal Protection.”

Requiring voter approval: James, 402 U.S. 137.

All of those opinions: James, 402 U.S. 137.

Matthew Lassiter, a University of Michigan: Dillon, “Dark Side to the California Dream.”

John Dean said Black: Woodward and Armstrong, The Brethren, 189; Jenkins, The Partisan, 103; Ehrlichman, Witness to Power, 133; Dean, Rehnquist Choice, 33; “Justice Black Dies at 85; Served on Court 34 Years,” New York Times, September 25, 1971.

The news that Harlan had: Ehrlichman, Witness to Power, 134; Woodward and Armstrong, The Brethren, 189; Jenkins, The Partisan, 103–4; Lesley Oelsner, “Harlan Dies at 72; On Court 16 Years,” New York Times, December 30, 1971.

Still, his outright support: Joyce Baugh, The Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation (Lawrence: University of Kansas Press, 2011), 17; Dean, Rehnquist Choice, 66; Paul Vitello, “Richard H. Poff, Who Withdrew Court Bid, Dies at 87,” New York Times, July 1, 2011; Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (New York: Norton, 2006), 27; “The Southern Manifesto of 1956,” History, Art & Archives, United States House of Representatives, history.house.gov/Historical-Highlights/1951-2000/The-Southern-Manifesto-of-1956/.

Powell, a former president: John Darnton, “Lewis Franklin Powell Jr.,” New York Times, October 22, 1971; Dean, Rehnquist Choice, 263–64.

The paper presented: Darnton, “Lewis Franklin Powell Jr.”

Whether that was true: Jeffries, Justice Lewis F. Powell, Jr., 139–40, 233–34; Kalman, Long Reach of the Sixties, 249, 292; B. Drummond Ayres Jr., “Court Ruling Is a Bitter Irony for Richmond Blacks,” New York Times, January 25, 1989.

When he resigned as chairman: Jeffries, Justice Lewis F. Powell, Jr., 7, 140–43.

Representative John Conyers Jr.: Jeffries, Justice Lewis F. Powell, Jr., 140–43; Fred Graham, “Senate Confirms Powell by 89 to 1 for Black’s Seat,” New York Times, December 7, 1971; James Naughton, “Harlan Retires; Nixon Hints Poff Is a Court Choice,” New York Times, September 24, 1971; “Rehnquist Confirmed by Senate, 68–26,” New York Times, December 11, 1971; Robert Semple, “Justice Black, 85, Quits High Court, Citing His Health,” New York Times, September 18, 1971; Kalman, Long Reach of the Sixties, 249, 292.

In a show of allegiance: Walter Sullivan, “Cigarettes Peril Health, U.S. Report Concludes,” New York Times, January 12, 1964; Robert Bedingfield, “Philip Morris Chief Questions Finding of Smoking Study,” New York Times, April 15, 1964; Jeffries, Justice Lewis F. Powell, Jr., 188–89.

The one vote against him: Jeffries, Justice Lewis F. Powell, Jr., 240; Graham, “Senate Confirms Powell”; Jenkins, The Partisan, 134, 238–40.

Barry Goldwater, the Arizona senator: Tushnet, A Court Divided, 13; Jenkins, The Partisan, 124; Ehrlichman, Witness to Power, 136–37; Dean, Rehnquist Choice, 129, 265.

He went on to Stanford Law School: Tushnet, A Court Divided, 14, 22–23; Encyclopedia Britannica, s.v. “William Rehnquist,” britannica.com/biography/William-Rehnquist; Linda Greenhouse, “William H. Rehnquist, Chief Justice of Supreme Court, Is Dead at 80,” New York Times, September 4, 2005. Jenkins, The Partisan, 1, 3; George Lardner Jr. and Saundra Saperstein, “A Chief Justice-Designate with Big Ambitions,” Washington Post, July 6, 1986.

In addition to his contributions: Tushnet, A Court Divided, 14, 22–23; “William Rehnquist,” Encyclopaedia Britannica; Greenhouse, “William H. Rehnquist”; Jenkins, The Partisan, 1, 60, 69–70.

John Dean, Nixon’s White House counsel: Fred Graham, “Rehnquist Role in Election Confirmed,” New York Times, November 13, 1971; Dean, Rehnquist Choice, 272–73.

In Simple Justice: Graham, “Rehnquist Role in Election Confirmed”; Leon Friedman, “Rehnquist: He Was a Very Elusive Target,” New York Times, December 12, 1971; Darnton, “Lewis Franklin Powell Jr.”; Kalman, Long Reach of the Sixties, 303; Woodward and Armstrong, The Brethren, 196; Adam Liptak, “New Look at an Old Memo Casts More Doubt on Rehnquist,” New York Times, March 19, 2012; Brad Snyder and John Barrett, “Rehnquist’s Missing Letter: A Former Law Clerk’s 1955 Thoughts on Justice Jackson and Brown,” Boston College Law Review 53 (2012): 631; Jenkins, The Partisan, 38–39, 135; Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Vintage, 2005), 609–15; Dean, Rehnquist Choice, 284–5.

“Just be as mean”: “Nixon’s Final Advice to Rehnquist,” The Presidency: Educational Resources, University of Virginia Miller Center, millercenter.org/the-presidency/educational-resources/nixon-s-final-advice-to-rehnquist; Darnton, “Lewis Franklin Powell Jr.”; Kalman, Long Reach of the Sixties, 303; Woodward and Armstrong, The Brethren, 196; Tushnet, A Court Divided, 31; Jenkins, The Partisan, 135–36; Stanley Kutler, “Why Nixon Matters,” Reuters, August 7, 2014; Dean, Rehnquist Choice, 284–5.

“The next Court”: Naughton, “Harlan Retires”; Fred Graham, “Stewart Tells of Barring His Elevation,” New York Times, May 28, 1968; Fred Graham, “Profile of the ‘Nixon Court’ Now Discernible,” New York Times, May 24, 1972.

When it was clear: Ann Burkhart, “The Constitutional Underpinnings of Homelessness,” Houston Law Review 40 (2003), 211, 212n6.

When they failed to persuade: Lindsey v. Normet, 405 U.S. 56, 58–59 (1972); Lisa Alexander, “Occupying the Constitutional Right to Housing,” Nebraska Law Review 94 (2015): 245, 258.

“We do not denigrate”: Lindsey, 405 U.S. at 74; Steven Quaintance McKenzie, “Fast Food Justice: The Denial of Tenants’ Due Process Rights in Chicago’s Eviction Courts,” Public Interest Law Reporter 9 (2004): 1, 3–4.

Instead, the Court made it clear: Lindsey, 405 U.S. at 74; Lindsey, 405 U.S. at 90 (Douglas, J., dissenting).

He sued, arguing that: United States v. Kras, 409 U.S. 434 (1973); Henry Rose, “Denying the Poor Access to Court: United States v. Kras (1973),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 188–90.

The Court had also held: Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Boddie v. Connecticut, 401 U.S. 371 (1971).

The weekly payments: Kras, 409 U.S. at 444–48.

“I cannot agree”: Kras, 409 U.S. at 458 (Douglas, J., dissenting); Kras, 409 U.S. at 460; William Douglas, Go East Young Man (New York: Random House, 1974), 172.

When the court refused: Ortwein v. Schwab, 410 U.S. 656 (1973); Kras, 409 U.S. at 445; Stephen Loffredo and Don Friedman, “Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings,” Touro Law Review 25 (2009): 274, 296.

Applying the lenient rational-basis: Ortwein, 410 U.S. 656.

The Court’s decision: Ortwein, 410 U.S. 656.

When President Kennedy nominated White: Michael Bailey, “Measuring Court Preferences, 1950–2011: Agendas, Polarity and Heterogeneity” (Georgetown University, August 2012), available at semanticscholar.org; Woodward and Armstrong, The Brethren, 74–75; Miranda v. Arizona, 384 U.S. 436 (1966); Bowers v. Hardwick, 478 U.S. 186 (1986); Lyle Denniston, “The Mystery of Justice Byron White,” Constitution Daily, May 3, 2012; Jeffries, Justice Lewis F. Powell, Jr., 263; Linda Greenhouse, “Byron R. White, Longtime Justice and a Football Legend, Dies at 84,” New York Times, April 16, 2002.

White was an often unpredictable: Bailey, “Measuring Court Preferences”; Woodward and Armstrong, The Brethren, 74–75; Miranda, 384 U.S. 436; Bowers, 478 U.S. 186; Denniston, “Mystery of Justice Byron White”; Jeffries, Justice Lewis F. Powell, Jr., 263; Greenhouse, “Byron R. White.”

When the elderly Douglas: Russell W. Galloway, Justice for All?: The Rich and Poor in Supreme Court History, 1790–1990 (Durham, N.C.: Carolina Academic Press, 1991), 158–59; Woodward and Armstrong, The Brethren, 474.

Comparing noncitizens to racial minorities: Graham v. Department of Public Welfare, 403 U.S. 365 (1971).

A few years later: Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973); Woodward and Armstrong, The Brethren, 306; Craig v. Boren, 429 U.S. 190 (1976).

For poor people and poverty lawyers: Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: Norton, 2013), 18–19; Thomas Simon, “Suspect Class Democracy: A Social Theory,” Miami Law Review 45, no. 1 (1990): 107, 141; Marcy Strauss, “Reevaluating Suspect Classifications,” Seattle Law Review 35 (2011): 135, 140–41; Henry Rose, “The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question,” Nova Law Review 34 (2010): 407, 420; Frank I. Michelman, “Foreword: On Protecting the Poor Through the Fourteenth Amendment,” Harvard Law Review 83, no. 1 (1969): 21; Bertall L. Ross II and Su Li, “Measuring Political Power: Suspect Class Determinations and the Poor,” California Law Review 104 (2016): 323, 344; Nice, “No Scrutiny Whatsoever,” 629–36.

When New York City: Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007), 183.

It was less a rallying cry: Kornbluh, Battle for Welfare Rights, 183; Susan Sheehan, A Welfare Mother (New York: Houghton Mifflin Harcourt, 1976).

Eldridge sued for the right: John Capowksi, “Reflecting and Foreshadowing: Mathews v. Eldridge (1976),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 219, 221.

Still, Powell insisted: Mathews v. Eldridge, 424 U.S. 319, 342–43 (1976).

The record showed: Mathews, 424 U.S. at 349–50 (Brennan, J., dissenting).

Patricia Wald, the onetime neighborhood legal services lawyer: Patricia Wald, “Ten Admonitions for Legal Services Advocates Contemplating Federal Litigation,” Clearinghouse Review, May 1993, 11–12.

If he was making: Linda Greenhouse, “Warren E. Burger Is Dead at 87; Was Chief Justice for 17 Years,” New York Times, June 26, 1995.

Her nomination was historic: Sheryl Gay Stolberg and Charlie Savage, “Stevens’s Retirement Is Political Test for Obama,” New York Times, April 9, 2010; “Texts on Retirement of Justice Douglas,” New York Times, November 13, 1975; Richard W. Stevenson, “O’Connor to Retire, Touching Off Battle over Court,” New York Times, July 2, 2005.

A few years earlier: Tushnet, A Court Divided, 32; Robert McFadden, “Comments by Meese on Hunger Produce a Storm of Controversy,” New York Times, December 10, 1983; Jenkins, The Partisan, 210–13.

Reagan officials appreciated: Tushnet, A Court Divided, 32; Linda Greenhouse, “Senate, 65 to 33, Votes to Confirm Rehnquist as 16th Chief Justice,” New York Times, September 18, 1986; Stuart Taylor Jr., “Rehnquist and Scalia Take Their Places on Court,” New York Times, September 27, 1986; Jenkins, The Partisan, 210–13; Stuart Taylor Jr., “Rehnquist’s Court: Tuning Out the White House,” New York Times, September 11, 1988; Bernard Weinraub, “Burger Retiring, Rehnquist Named Chief; Scalia, Appeals Judge, Chosen for Court,” New York Times, June 18, 1986.

When Kennedy asked: Tushnet, A Court Divided, 32; Greenhouse, “Senate, 65 to 33”; Jenkins, The Partisan, 40–41, 216–19; Ronald Ostrow and Robert Jackson, “Rehnquist Denies That He Harassed Minority Voters,” Los Angeles Times, July 31, 1986; Stuart Taylor, “4 Rebut Testimony of Rehnquist on Challenging of Voters in 60’s,” New York Times, August 2, 1986.

confirmed him by a 65–33 vote: Tushnet, A Court Divided, 32; Greenhouse, “Senate, 65 to 33”; Jenkins, The Partisan, 40–41, 216–17, 221; George Lardner Jr., “ ’50s Memos Illustrate Rehnquist Consistency,” Washington Post, July 20, 1986.

Scalia was confirmed: David Savage, “Scalia Takes Oath and Rehnquist Sworn In as Chief Justice,” Los Angeles Times, September 27, 1986; Stuart Taylor, “Scalia Returns Soft Answers to Senators,” New York Times, August 6, 1986.

As a result, the energy: Savage, “Scalia Takes Oath”; Greenhouse, “Senate, 65 to 33”; Jenkins, The Partisan, 221–22.

Liberals were surprised: “Justices 1789 to Present,” Supreme Court of the United States, supremecourt.gov/about/members_text.aspx; Linda Greenhouse, “Lewis Powell, Crucial Centrist Justice, Dies at 90,” New York Times, April 26, 1998; Richard Berke, “Senate Confirms Souter, 90 to 9, as Supreme Court’s 105th Justice,” New York Times, October 3, 1990; Greenhouse, “William H. Rehnquist.”

More than two decades: “Justices 1789 to Present,” Supreme Court; R. W. Apple Jr., “The Thomas Confirmation: Senate Confirms Thomas, 52–48, Ending Week of Bitter Battle; ‘Time for Healing,’ Judge Says,” New York Times, October 16, 1991; Linda Greenhouse, “Senate, 96–3, Easily Affirms Judge Ginsburg as a Justice,” New York Times, August 4, 1993; Gwen Ifill, “President Chooses Breyer, an Appeal Judge in Boston, for Blackmun’s Court Seat,” New York Times, May 14, 1994; David Margolick, “Man in the News: The Supreme Court: Scholarly Consensus Builder: Stephen Gerald Breyer,” New York Times, May 14, 1994.

President Clinton, who had promised: Alana Semuels, “The End of Welfare as We Know It,” Atlantic, April 1, 2016; Jeffrey Volle, Clinton/Gore: Victory from a Shadow Box (New York: Palgrave Macmillan, 2012), 107.

When Clinton signed: Semuels, “End of Welfare as We Know It”; Alison Mitchell, “Two Clinton Aides Resign to Protest New Welfare Law,” New York Times, September 12, 1996; Chris McGreal, “Clinton-Era Welfare Reforms Haunt America’s Poorest Families, Critics Say,” Guardian, March 7, 2016; Richard Fording and Sanford Schram, “The Welfare Reform Disaster,” Jacobin, August 28, 2016; Edelman, “Dandridge v. Williams Redux,” 981, 984–85.

A national study found that: Semuels, “End of Welfare as We Know It”; Liz Schott, “TANF at 20, Part 3: States Not Investing in Core Welfare Reform Areas,” Center on Budget and Policy Priorities, August 17, 2016, cbpp.org/blog/tanf-at-20-part-3-states-not-investing-in-core-welfare-reform-areas; Ladonna Pavetti and Liz Schott, “TANF at 20: Time to Create a Program That Supports Work and Helps Families Meet Their Basic Needs,” Center on Budget and Policy Priorities, August 15, 2016, cbpp.org/research/family-income-support/tanf-at-20-time-to-create-a-program-that-supports-work-and-helps; Jordan Weissmann, “The Failure of Welfare Reform,” Slate, June 1, 2016; H. Luke Shaefer, “The Magnitude of the Change in $2-a-Day Poverty Since 1996 Is Even Larger After Reducing Survey Bias,” $2 a Day blog, March 20, 2017, twodollarsaday.com/blog/2017/3/20/the-magnitude-of-the-change-in-2-a-day-poverty-since-1996-is-even-larger-after-reducing-survey-bias; Fording and Schram, “Welfare Reform Disaster”; Zach Parolin, “Welfare Money Is Paying for a Lot of Things Besides Welfare,” Atlantic, June 13, 2019.

The Center on Budget: Pavetti and Schott, “TANF at 20: Time to Create”; Parolin, “Welfare Money Is Paying for a Lot”; “What Is ‘Deep Poverty’?,” Center for Poverty Research, University of California, Davis, poverty.ucdavis.edu/faq/what-deep-poverty.

Government should have leeway: Edelman, “Dandridge v. Williams Redux,” 985–86.

Benefit levels are also: Edelman, “Dandridge v. Williams Redux,” 985–86, 988; Semuels, “End of Welfare as We Know It.”

One study of Maine families: Sandra Butler, “What Happens to Poor Families When They Hit Welfare Time Limits and Cash Benefits Disappear,” Scholars Strategy Network, May 1, 2013, scholars.org/contribution/what-happens-poor-families-when-they-hit-welfare-time-limits-and-cash-benefits; Ife Floyd, “Arizona Cuts TANF Time Limit to Shortest Nationwide,” Center on Budget and Policy Priorities, July 5, 2016, cbpp.org/blog/arizona-cuts-tanf-time-limit-to-shortest-nationwide.

Congressional Republicans and President Clinton: James, 402 U.S. at 145 (Marshall, J., dissenting); United States v. Carolene Products Co., 304 U.S. 144, 152n4 (1938).

The most centrist of the conservatives: “Justices 1789 to Present,” Supreme Court; William Branigin, Fred Barbash, and Daniela Deane, “Supreme Court Justice O’Connor Resigns,” Washington Post, July 1, 2005.

The plans were changed: Coyle, Roberts Court, 60–61; Stevenson, “O’Connor to Retire”; David Stout and Elisabeth Bumiller, “President’s Choice of Roberts Ends a Day of Speculation,” New York Times, July 19, 2005; Branigin, Barbash, and Deane, “Supreme Court Justice O’Connor Resigns”; “John J. O’Connor, Ex-Justice’s Husband, Dies,” UPI, November 11, 2009.

The ideological gatekeepers: Richard Stevenson, “President Names Roberts as Choice for Chief Justice,” New York Times, September 6, 2005; Jeffrey Toobin, “The Conservative Pipeline to the Supreme Court,” New Yorker, April 17, 2017; Todd Purdum, Jodi Wilgoren, and Pam Belluck, “Court Nominee’s Life Is Rooted in Faith and Respect for Law,” New York Times, July 21, 2005.

Roberts and his wife: Purdum, Wilgoren, and Belluck, “Court Nominee’s Life Is Rooted”; Coyle, Roberts Court, 61; Joan Biskupic, The Chief: The Life and Turbulent Times of Chief Justice John Roberts (New York: Basic Books, 2018), 18, 24, 72, 96, 115, 125.

Roberts was confirmed: David Stout, “Roberts Is Sworn In as Chief Justice of U.S.,” New York Times, September 29, 2005.

In the face of this: Karl Rove, Courage and Consequence: My Life as a Conservative in the Fight (New York: Threshold Editions, 2010), 421–24; Elizabeth Bumiller and Carl Hulse, “Bush’s Court Choice Ends Bid; Conservative Attacked Miers,” New York Times, October 28, 2005; Toobin, “Conservative Pipeline”; “Roberts: ‘My Job Is to Call Balls and Strikes and Not to Pitch or Bat,’” CNN, September 12, 2005.

One of Alito’s first political inspirations: David Kirkpatrick, “From Alito’s Past, a Window on Conservatives at Princeton,” New York Times, November 27, 2005; Coyle, Roberts Court, 69; Rove, Courage and Consequence, 423.

He was sometimes called: Edward Kennedy, “Alito’s Credibility Problem,” Washington Post, January 7. 2006; Tom Donnelly and Brianne Gorod, “None to the Right of Samuel Alito,” Atlantic, January 30, 2016; Biskupic, The Chief, 142.

O’Connor and Kennedy: Coyle, Roberts Court, 60–61; Stevenson, “O’Connor to Retire”; Stout and Bumiller, “President’s Choice of Roberts”; Purdum, Wilgoren, and Belluck, “Court Nominee’s Life Is Rooted”; Coyle, Roberts Court, 61; Marcia Coyle, “Column: Why Replacing the ‘Swing’ Justice Ignites Warring Passions of Special Interest Groups,” PBS.com, July 11, 2018.

As a result: “Justices 1789 to Present,” Supreme Court; “Obama Nominated Sonia Sotomayor,” CNN, May 26, 2009; Carl Hulse, “Senate Confirms Kagan in Partisan Vote,” New York Times, August 5, 2010.

He had already served: Turner v. Rogers, 564 U.S. 431 (2011); Kelly Terry, “The Movement for a Right to Counsel in Civil Cases: Turner v. Rogers (2011),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 256–58.

Turner was sentenced: Turner, 564 U.S. 431; Terry, “The Movement for a Right,” 259.

Turner contended that: Turner, 564 U.S. 431; Terry, “The Movement for a Right,” 266.

Advocates for the poor: Terry, “The Movement for a Right,” 266.

In considering whether: Turner, 564 U.S. 431; Terry, “The Movement for a Right,” 269; Turner, 564 U.S. 431.

On the third prong: Terry, “The Movement for a Right,” 269; Turner, 564 U.S. 431.

The four dissenters: Terry, “The Movement for a Right,” 269; Turner, 564 U.S. 431.

The executive director: Terry, “The Movement for a Right,” 269.

The New York Times hailed: National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012); Adam Liptak, “Supreme Court Upholds Health Care Law, 5–4, in Victory for Obama,” New York Times, June 28, 2012.

Legal analysts debated: Tushnet, In the Balance: Law and Politics on the Roberts Court (New York: Norton, 2013), 1–2; Biskupic, The Chief.

If a state did not expand: Sara Rosenbaum and Timothy Westmoreland, “The Supreme Court’s Surprising Decision on the Medicaid Expansion: How Will the Federal Government and States Proceed?,” Health Affairs 31, no. 8 (August 2012): 1664; Nicole Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson, “Plunging into Endless Difficulties: Medicaid and Coercion in National Federation of Independent Business v. Sebelius,” Boston University Law Review 93 (2013): 25, 41–42.

Roberts had the five votes: Huberfeld et al., “Plunging into Endless Difficulties,” 21; Scott Lemieux, “Should Liberals Be Mad at Kagan and Breyer?,” American Prospect, July 9, 2012; Biskupic, The Chief, 239–40; Joan Biskupic, interview by Dave Davies, Fresh Air, NPR, April 1, 2019.

The pressure to accept Medicaid expansion: National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2604–5 (2012).

There was another reason: Sebelius, 567 U.S. 519 (Ginsburg, J., concurring); South Dakota v. Dole, 483 U.S. 203 (1987).

more than any justice: Sebelius, 567 U.S. 519 (Ginsburg, J., concurring).

“We came to know more”: Tushnet, A Court Divided, 104–5; Jewish Women’s Archive Encyclopedia, s.v. “Ruth Bader Ginsburg,” by Malvina Halberstam, jwa.org/encyclopedia/article/ginsburg-ruth-bader; Jane Eisner, “Jane Eisner Interviews Ruth Bader Ginsburg: Transcript,” The Forward, February 5, 2018.

One of her greatest victories: Tushnet, A Court Divided, 104–5; 109–10.

They made her, she said: Tushnet, A Court Divided, 104–5; Jewish Women’s Archive Encyclopedia, s.v. “Ruth Bader Ginsburg”; Eisner, “Jane Eisner Interviews Ruth Bader Ginsburg.”

Sotomayor was diagnosed: Sheryl Gay Stolberg, “Sotomayor, a Trailblazer and a Dreamer,” New York Times, May 26, 2009; Biography.com, s.v. “Sonia Sotomayor,” biography.com/people/sonia-sotomayor-453906; Sonia Sotomayor, “Lecture: ‘A Latina Judge’s Voice,’” New York Times, May 14, 2009.

Six years later: Stolberg, “Sotomayor, a Trailblazer.”

Although she said she could: Stolberg, “Sotomayor, a Trailblazer.”

One scholarly article said that: Huberfeld et al., “Plunging into Endless Difficulties,” 1, 87; Sebelius, 132 S. Ct. at 2641.

Later, the nonpartisan: Matthew Buettgens and Genevieve Kenney, “What If More States Expanded Medicaid in 2017? Changes in Eligibility, Enrollment, and the Uninsured,” Urban Institute, July 20, 2016; Carter Price and Christine Eibner, “The Math of State Medicaid Expansion” (Santa Monica, Calif.: RAND Corp., 2013); Sebelius, 567 U.S. 519 (Ginsburg, J., concurring).

He was striking down: K. K. Rebecca Lai and Alicia Parlapiano, “Millions Pay the Obamacare Penalty Instead of Buying Insurance. Who Are They?” New York Times, November 28, 2017.

The Court no longer saw: Lai and Parlapiano, “Millions Pay the Obamacare Penalty.”

On a practical level: Lyndon Johnson, Annual Message to Congress on the State of the Union (January 8, 1964, Washington, D.C.), Lyndon Baines Johnson Presidential Library, lbjlibrary.net/collections/selected-speeches/november-1963-1964/01-08-1964.html.

In the aggregate: Mark A. Graber, “The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory,” Ohio State Law Journal 58, no. 3 (1997): 787–88; King, 392 U.S. 327–333 (1968); Henry Freedman, “Sylvester Smith, Unlikely Heroine: King v. Smith (1968),” in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (Ann Arbor: University of Michigan Press, 2016), 65.

In a recent year, nearly one million: Carmen Solomon-Fears, Alison Smith, and Carla Berry, “Child Support Enforcement: Incarceration as the Last Resort Penalty for Nonpayment of Support,” Congressional Research Service (2012), ncsea.org/documents/CRS-Report-on-CSE-and-Incarceration-for-Non-Payment-March-6-2012.pdf; Emily Badger and Quoctrung Bui, “In 83 Million Eviction Records, a Sweeping and Intimate New Look at Housing in America,” New York Times, April 7, 2018.

As with the beneficiaries: Signe-Mary McKernan, “The Effect of Specific Welfare Policies on Poverty,” Urban Institute (April 2006), 19; Ife Floyd, “States Should Repeal Racist Policies Denying Benefits to Children Born to TANF Families,” Center for Budget and Policy Priorities, April 30, 2019.

If the Court had not struck down: Huberfeld et al., “Plunging into Endless Difficulties,” 6; Buettgens and Kenney, “What If More States Expanded Medicaid”; Matthew Buettgens, “The Implications of Medicaid Expansion in the Remaining States: 2018 Update,” Robert Wood Johnson Foundation, May 2018; Tara Golshan, “Study: The US Could Have Averted About 15,600 Deaths if Every State Expanded Medicaid,” Vox, July 23, 2019.

That suggested that: Melissa Majerol, Jennifer Tolbert, and Anthony Damico, “Health Care Spending Among Log-Income Households with and Without Medicaid,” Kaiser Family Foundation, February 4, 2016.

A study published: Pam Belluck, “Medicaid Expansion May Lower Death Rates, Study Says,” New York Times, July 25, 2012.

It might have invalidated: Dandridge, 397 U.S. at 487.

There have been questions: Kathryn Edin and H. Luke Shaefer, “20 Years Since Welfare ‘Reform,’” Atlantic, August 22, 2016; Arloc Sherman, “Under $2 a Day in America Part 1,” Center for Budget and Policy Priorities, Off the Charts, March 5, 2012; Dylan Matthews, “How Many Americans Live on $2 a Day? The Biggest Debate in Poverty Research, Explained,” Vox, June 5, 2019.

The Court’s rulings: Jeffrey Mondak, “Policy Legitimacy and the Supreme Court: The Sources and Contexts of Legitimation,” Political Science Quarterly 47, no. 3 (1994): 675.

It found, among other things: Michael Karpman et al., “Material Hardship Among Nonelderly Adults and Their Families in 2017,” Urban Institute (August 2018), 6; “Statement on Visit to the USA by Professor Philip Alston, United Nations Special Rapporteur on Extreme Poverty and Human Rights,” Office of the High Commissioner for Human Rights, United Nations, December 15, 2017.

Chapter Three: Education

The plaintiffs argued: San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

The district’s median: Michael Heise, “The Story of San Antonio Independent School Dist. v. Rodriguez: School Finance, Local Control, and Constitutional Limits” (research paper, Cornell Law School, 2007); Mark G. Yudof and Daniel C. Morgan, “Rodriguez v. San Antonio Independent School District: Gathering the Ayes of Texas—The Politics of School Finance Reform,” Law and Contemporary Problems 38 (1974): 391; Christine Drennon, “Social Relations Spatially Fixed: Construction and Maintenance of School Districts in San Antonio, Texas,” Geographical Review 96 (October 2006): 584.

“That would be as much”: Yudof and Morgan, “Rodriguez v. San Antonio,” 383, 391; Cynthia E. Orozco, “Rodriguez v. San Antonio ISD,” Handbook of Texas Online, June 15, 2010, tshaonline.org/handbook/online/articles/jrrht; Peter Irons, The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (New York: Penguin, 1990); J. Steven Farr and Mark Trachtenberg, “The Edgewood Drama: An Epic Quest for Education Equity,” Yale Law & Policy Review 7 (1999): 607; “Edgewood Ponders Situation,” Austin Statesman, March 28, 1973.

Property values in Alamo Heights: Heise, “Story of San Antonio,” 2; Jeffrey Sutton, “San Antonio Independent School District v. Rodriguez and Its Aftermath,” Virginia Law Review 94 (2008): 1963, 1964.

The facilities were also far superior: Farr and Trachtenberg, “The Edgewood Drama,” 607–8; Rodriguez v. San Antonio School District, 85–86.

Taking all revenue into account: Rodriguez v. San Antonio Independent School District, 337 F. Supp. 280, 282–83 (W.D. Tex. 1971); Yudof and Morgan, “Rodriguez v. San Antonio,” 387–90; James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools and the Story of Educational Opportunity in Modern America (New York: Oxford University Press, 2010).

The poorest districts: Yudof and Morgan, “Rodriguez v. San Antonio,” 392–3.

The state imposed a limit: Rodriguez v. San Antonio, 411 U.S. 66.

Connally, however, would soon leave: Yudof and Morgan, “Rodriguez v. San Antonio,” 390–91; Heise, “Story of San Antonio,” 3.

At the time, the Supreme Court: Laura Isensee, “How a Dad Helped Start the Fight for Better Public School Funds in Texas,” Houston Public Media, September 7, 2015; Yudof and Morgan, “Rodriguez v. San Antonio,” 391; Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff’d sub nom., Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969); Griffin v. Illinois, 351 U.S. 12 (1956); Harper v. Virginia Board of Election Commissioners, 383 U.S. 663 (1966); Arthur Gotchman obituary, Austin American-Statesman, October 27, 2010.

Wise believed that school funding: Heise, “Story of San Antonio,” 15–16.

The Equal Protection Clause did not permit: Hobson, 269 F. Supp. 401.

He wanted a better future: Heise, “Story of San Antonio,” 1–2; Yudof and Morgan, “Rodriguez v. San Antonio,” 391; Isensee, “How a Dad Helped Start the Fight”; William Stevens, “U.S. Court Upsets Texas School Tax Tied to Property,” New York Times, December 31, 1971; “Civil Service Worker Sure of Supreme Court Victory,” Associated Press, October 15, 1972; Wayne Jackson, “Edgewood Depressed by Ruling,” Austin Statesman, March 21, 1973; Melvin Urofsky, One Hundred Americans Making Constitutional History (Washington, D.C.: CQ Press, 2004), 173–74.

At the time, when the Warren Court: Laurence Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1988), 1455–63; Brown v. Board of Education, 347 U.S. 483, 493 (1954); United States v. Carolene Products, 304 U.S. 144, 152n4 (1938); Gerald Gunther, “Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,” Harvard Law Review 86, no. 1 (1972): 1, 8; Yudof and Morgan, “Rodriguez v. San Antonio,” 391–92; Heise, “Story of San Antonio,” 6.

In Brown v. Board of Education: Tribe, American Constitutional Law, 1455–63; Brown, 347 U.S. at 493; Carolene Products, 304 U.S. at 152n4; Gunther, “Foreword: In Search of Evolving Doctrine,” 1, 8.

It would be extremely difficult: Wex Legal Dictionary, s.v. “Strict Scrutiny,” Legal Information Institute, law.cornell.edu/wex/strict_scrutiny.

That separate state constitutional claim: William Greider, “Challenger to School Tax Saw Court Sink His Theory,” Austin Statesman, March 28, 1973; Valerie Nelson, “John Serrano Jr., 69; His Lawsuit Changed the Way State’s Schools Are Funded,” Los Angeles Times, December 6, 2006; Richard Valencia, Chicano Students and the Courts: The Mexican American Legal Struggle for Educational Equality (New York: New York University Press, 2010), 85.

In Private Wealth and Public Education: Stephen Goldstein, “Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and Its Progeny,” University of Pennsylvania Law Review 120 (1972): 512; John Coons, Stephen Sugarman, and William Clune III, Private Wealth and Public Education (Cambridge, Mass.: Harvard University Press, 1970), 2, 435, 443 461–62; Linda Mathews, “School Funds Ruling to Have Broad Impact,” Los Angeles Times, June 29, 1973; William Greider, “‘Novel Theory’ of School Spending Cashiered by Court,” Washington Post, March 22, 1973; Richard Valencia, Chicano Students and the Courts: The Mexican American Legal Struggle for Educational Equality (New York: New York University Press, 2008), 85.

When it was clear: Yudof and Morgan, “Rodriguez v. San Antonio,” 392.

“By our holding today”: Serrano v. Priest, 5 Cal. 3d 584, 594, 614–15, 619 (1971).

It also decided that the state’s: Van Dusartz v. Hatfield, 334 F. Supp. 870, 875–77 (D. Minn. 1971); Minnesota Department of Education Division of School Finance, “Minnesota School Finance History 1849–2016,” December 2016.

“At issue is the whole structure”: Greider, “‘Novel Theory’ of School Spending”; Joanne Leedom, “Upheaval in School Funding,” Christian Science Monitor, September 2, 1971.

As support, it quoted: Rodriguez, 337. F. Supp. at 282–83; Heise, “Story of San Antonio,” 5; Ryan, Five Miles Away.

The court noted, however, that the system: Rodriguez, 337 F. Supp. at 284.

It simply ordered the legislature: Rodriguez, 337 F. Supp. at 284–85.

The Rodriguez plaintiffs wanted: Frederick Andrews, “School Ruling Is Seen Changing the Nature of U.S. Cities, Suburbs,” Wall Street Journal, March 13, 1972; Stevens, “U.S. Court Upsets Texas School Tax.”

Beverly Hills spent more than twice: Andrews, “School Ruling Is Seen Changing the Nature.”

It quoted one lawyer: Andrews, “School Ruling Is Seen Changing the Nature.”

The days after the Rodriguez decision: Goldstein, “Interdistrict Inequalities in School Financing,” 504, 506; Stevens, “U.S. Court Upsets Texas School Tax.”

A New Jersey superior court: Robinson v. Cahill, 118 N.J. Super. 223 (1972); Milliken v. Green, 203 N.W.2d 457 (Mich. 1972); Hollins v. Shofstall, Civ. No. C-253652 (Super. Ct. Ariz., July 7, 1972); Sweetwater Planning Committee v. Hinkle, 491 P. 2d 1234 (Wyo. 1971).

“We now have enough evidence”: Greider, “‘Novel Theory’ of School Spending”; Leedom, “Upheaval in School Funding”; Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (New York: Pantheon, 2018), 319.

“Unlike many other societal problems”: Goldstein, “Interdistrict Inequalities in School Financing,” 506; Driver, Schoolhouse Gate, 318.

Wright was an outspoken conservative: Yudof and Morgan, “Rodriguez v. San Antonio,” 399; Christopher Lydon, “The Man Who Said ‘No’ for Nixon: Charles Alan Wright,” New York Times, July 24, 1973.

By the time the Rodriguez case: Ortwein v. Schwab, 410 U.S. 656, 660 (1973).

It would have been hard: King v. Smith, 392 U.S. 309 (1968).

He urged big business: Lewis F. Powell Jr., “Powell Memorandum: Attack on American Free Enterprise System,” August 23, 1971, 1, 7–8, Powell Papers, Lewis F. Powell Jr. Archives, Washington and Lee University School of Law, law2.wlu.edu/powellarchives/page.asp?pageid=1251 (portal for all materials on Powell Memorandum); Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2016), 237–39, 407.

It was “so militant”: Memorandum from Lewis F. Powell Jr. to Messrs. Buckley, Jeffries, and Owens, November 12, 1973, Powell Papers; Letter from Lewis F. Powell Jr. to Ross L. Malone, Sept. 13, 1971, Powell Papers; Graetz and Greenhouse, The Burger Court, 239; Fred P. Graham, “Powell Proposed Business Defense,” New York Times, September 29, 1972; Alliance for Justice, Justice for Sale: Shortchanging the Public Interest for Private Gain (Washington, D.C.: Alliance for Justice, 1993).

“This setting of the ‘rich’”: “Powell Memorandum,” 7–8, Powell Papers.

It was “preservative of other rights”: Oral Argument, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), oyez.org/cases/1972/71-1332; Yudof and Morgan, “Rodriguez v. San Antonio,” 400.

“They are fair men”: Yudof and Morgan, “Rodriguez v. San Antonio,” 401; “Civil Service Worker Sure of Supreme Court Victory”; Rodriguez, 411 U.S. at 33.

Powell wrote the majority opinion: Rodriguez, 411 U.S. at 33; Rodriguez, 411 U.S. at 28.

The plaintiff class was: Rodriguez, 411 U.S. at 33–35.

It was, he said: Rodriguez, 411 U.S. 1, 33–35.

Texas’s school finance system: Rodriguez, 411 U.S. at 49–50; San Antonio Independent School District v. Rodriguez, Supreme Court Case Files Collection, Box 8, Powell Papers.

Powell said his opinion: Rodriguez, 411 U.S. at 58–59.

His sympathetic words: Rodriguez, 411 U.S. at 59–62; Graetz and Greenhouse, The Burger Court, 91–92.

It did not allow for true local control: Rodriguez, 411 U.S. at 63–70.

President Johnson appointed: Linda Greenhouse, “Thurgood Marshall, Civil Rights Hero, Dies at 84,” New York Times, January 25, 1993.

Some of Marshall’s most important cases: Shelley v. Kraemer, 334 U.S. 1 (1948); Smith v. Allwright, 321 U.S. 649 (1944); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); Greenhouse, “Thurgood Marshall, Civil Rights Hero.”

He also argued: Rodriguez, 411 U.S. at 111–16.

The Court’s decision: Rodriguez, 411 U.S. at 71–72, 84–85; Sweatt, 339 U.S. 629; McLaurin, 339 U.S. 637; Charles J. Ogletree, “The Legacy of San Antonio Independent School District v. Rodriguez,” Richmond Journal of the Law and the Public Interest XVII (2014): 515, 524–25; Sutton, “San Antonio Independent School District,” 1963, 1970.

If the Court would not provide: Rodriguez, 411 U.S. at 98.

“If a single Justice”: Warren Weaver Jr., “Court, 5–4, Backs Schools in Texas on Property Tax,” New York Times, March 22, 1973.

“It hurts,” John Coons said: Greider, “‘Novel Theory’ of School Spending”; Mathews, “School Funds Ruling to Have Broad Impact.”

Texas governor Dolph Briscoe said: Weaver, “Court, 5–4, Backs Schools in Texas.”

“We’re left holding the empty bag”: John MacKenzie, “Court Puts Reform Up to States,” Washington Post, March 22, 1973; Jackson, “Edgewood Depressed by Ruling”; “Plaintiff Is Bitter,” New York Times, March 22, 1973.

The Times ran the report: “Plaintiff Is Bitter,” New York Times.

These state claims were generally stronger: Rodriguez, 411 U.S. at 133n100.

Each would have to be brought: Stephen Gard, ‘San Antonio Independent School District v. Rodriguez: On Our Way to Where?,” Valparaiso University Law Review 8 (Fall 1973): 1.

The Louisiana Supreme Court: “Overview of Litigation History,” SchoolFundingInfo.org, schoolfunding.info/litigation-map/; William N. Evans, Sheila E. Murray, and Robert M. Schwab, “The Impact of Court-Mandated School Finance Reform,” in Equity and Adequacy in Education Finance: Issues and Perspectives, by National Research Council (Washington, D.C.: National Academies Press, 1999).

A lawyer who represented: Jonathan Kozol, Savage Inequalities: Children in America’s Schools (New York: Harper Perennial, 1991), 223–29; Bill Peterson, “Kentucky Public Schools Ruled Unconstitutional,” Washington Post, June 9, 1989; Claudio Sanchez, “Kentucky’s Unprecedented Success in School Funding Is on the Line,” All Things Considered, NPR, April 26, 2016, npr.org/sections/ed/2016/04/26/475305022/kentuckys-unprecedented-success-in-school-funding-is-on-the-line; Robert Garrett, “Texas School Funding Flawed but Legal, Justices Rule; First Win for State on Issue in Decades,” Dallas Morning News, May 13, 2016.

The fight to equalize school funding: Monica Disare, “Here’s the Education Lawsuit That Helped Motivate Cynthia Nixon’s Run for Governor,” Chalkbeat, March 29, 2018; “The History of Abbott v. Burke,” Education Law Center, edlawcenter.org/litigation/abbott-v-burke/abbott-history.html.

The Court could have recognized: “Equity,” The Glossary of Education Reform, available at edglossary.org/equity/.

Unlike other rulings, the Kentucky decision: Richard Day and Jo Ann Ewalt, “Education Reform in Kentucky: Just What the Court Ordered” (Curriculum and Instruction Faculty and Staff Scholarship paper, Eastern Kentucky University, 2013), 265.

After the reforms took effect: Day and Ewalt, Education Reform in Kentucky, 267.

The Milliken lawsuit: Milliken v. Bradley, 418 U.S. 717 (1974).

To members of the black community: Joyce Baugh, The Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation (Lawrence: University of Kansas Press, 2011), 68–70; “Bus Ruling Jars Detroit Suburbs,” New York Times, October 3, 1971.

In the decade after the law passed: Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 139; Frank Brown, “The First Serious Implementation of Brown: The 1964 Civil Rights Act and Beyond,” Journal of Negro Education 73, no 3 (2004): 182–90.

White flight was helped: Myron Orfield, “Milliken, Meredith, and Metropolitan Segregation,” UCLA Law Review 62 (2015): 376–77; Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (New York: Liveright, 2017); Baugh, Detroit School Busing, 21, 29–31.

The most well known of those: George Gagster, Driving Detroit: The Quest for Respect in the Motor City (Philadelphia: University of Pennsylvania Press, 2014), 139; Thomas J. Sugrue, Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton, N.J.: Princeton University Press, 2014), 63–66; Orfield, “Milliken, Meredith,” 397; Baugh, Detroit School Busing Case, 33.

By 1970, the black population: Susan Welch, Race and Place: Race Relations in an American City (Cambridge, England: Cambridge University Press, 2001), 27; Kurt Metzger and Jason Booza, African Americans in the United States, Michigan and Metropolitan Detroit (working paper, Center for Urban Studies, Wayne State University, Detroit, 2002), 10; 1970 Census of Population and Housing (U.S. Department of Commerce, Bureau of the Census, 1970), 6, table 1; Orfield, “Milliken, Meredith,” 397–8; Huff, “Only Feasible Desegregation Plan.”

Some of the school districts: Bradley v. Milliken, 338 F. Supp. 582, 585 (E.D. Mich. 1971); Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973).

In early 1968, the Detroit: Baugh, Detroit School Busing Case, 70–74.

The commission declared: Martin Ginsburg, “Integration: The Gap Is Widening,” Annual Education Review, 1968; National Advisory Commission on Civil Disorders, Report of the National Advisory Commission on Civil Disorders (1968), 11–12, 50; U.S. Commission on Civil Rights, Racial Isolation in the Public Schools, vol. 1 (1967), 1, 109–10, 219–10; Baugh, Detroit School Busing Case, 19.

Despite strong white opposition: Baugh, Detroit School Busing Case, 77–80.

None of the new board members: Baugh, Detroit School Busing Case, 81–86.

Since the city and state had rejected: Baugh, Detroit School Busing Case, 86; Bradley v. Milliken, 338 F.Supp. 582.

Unless the courts changed the law: Gordon, “Rights Lawyers Gird for Battle”; Berry, “South Leads in Integration”; Driver, Schoolhouse Gate, 284

It was not as straightforward a case: Huff, “Only Feasible Desegregation Plan”; Robert Sedler, “The Profound Impact of Milliken v. Bradley,” Wayne Law Review 33 (1987): 1698–99; Baugh, Detroit School Busing Case, 108; Bradley v. Milliken, 338 F.Supp. 582.

Such an order would also: Baugh, Detroit School Busing Case, 124.

A “metropolitan area” remedy: Baugh, Detroit School Busing Case, 117, 125; Carrie Sharlow, “Michigan Lawyers in History: Stephen J. Roth,” Michigan Bar Journal 91 (October 2012): 44–45.

It made a strong impression: “Judge Stephen Roth, 66, Dies; Ordered Detroit School Busing,” New York Times, July 12, 1974; Baugh, Detroit School Busing Case, 92, 113.

In an array of ways: Baugh, Detroit School Busing Case, 116.

That, he insisted, required: Bradley, 338 F. Supp. at 585; Bradley v. Milliken, 345 F.Supp. 914 (E.D. Mich. 1972); Orfield, “Milliken, Meredith,” 364, 402; Baugh, Detroit School Busing Case, 127.

Roth appointed a committee: Bradley, 345 F. Supp. at 918–19; Baugh, Detroit School Busing Case, 127–30; Orfield, “Milliken, Meredith,” 401.

In the state’s May 1972 Democratic primary: “Judge Stephen Roth, 66, Dies; Ordered Detroit School Busing,” New York Times, July 12, 1974; Louis Masur, The Soiling of Old Glory: The Story of a Photograph That Shocked America (New York: Bloomsbury USA, 2009), 38; “Michigan Governor Fights Mass Busing,” Atlanta Journal-Constitution, June 16, 1972; “Bombs Fail to Halt Busing,” Atlanta Constitution, September 1, 1971; Orfield, “Milliken, Meredith,” 404–5; William Jones, “Michigan Primary Keyed to Busing Issue,” Chicago Tribune, May 13, 1972; Tom Gilchrist, “A Little History of Michigan Primary,” Politics & Elections blog, Michigan Live, January 12, 2008.

Given the demographics: Bradley v. Milliken, 484 F.2d 215 (6th Circuit 1973).

In 1971, in a case: Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

That decision, which came: Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973); Driver, Schoolhouse Gate, 274; Orfield, “Milliken, Meredith,” 411.

The real question, however, was: Keyes, 413 U.S. 189.

Milliken, which was almost: Milliken, 418 U.S. at 741–45, 745, 803 (1974). Justice Potter Stewart wrote a separate concurring opinion that, because his vote was necessary for the majority, must also be considered part of the Court’s holding. He emphasized the fact that, on the record in the case, there was no evidence of any interdistrict violations. Milliken, 418 U.S. at 755–56.

Upholding Roth’s order: Milliken, 418 U.S. at 741; Allen Katz (law clerk to Thurgood Marshall, 1973–1974), interview with the author, September 29, 2018.

Unless Michigan “drew the district lines”: Milliken, 418 U.S. at 746–47.

It was a more elaborate way: Milliken, 418 U.S. at 753–62.

Since the state was partly responsible: Milliken, 418 U.S. at 799.

That is, he said, “in the final analysis”: Milliken, 418 U.S. at 783–84.

“In the short run”: Milliken, 418 U.S. at 781–815; Sedler, “Profound Impact of Milliken v. Bradley,” 1693, 1699.

The Wall Street Journal: William Stevens, “Many White Parents Now See Their Children as Safe,” New York Times, July 27, 1924; Agis Salpukas, “Joy Is Expressed in the Suburbs; Reactions in Detroit Divided,” New York Times, July 26, 1974; Driver, Schoolhouse Gate, 287; Baugh, Detroit School Busing Case, 174.

Judge J. Skelly Wright, in Washington: John C. Jeffries, Justice Lewis F. Powell, Jr., (New York: Charles Scribner’s Sons, 1994), 314; “Wrong Without Remedy,” New York Times, July 28, 1974.

“Thus it will be of little concern”: Baugh, Detroit School Busing Case, 177–8. “‘Detroit, Where Life Is Worth Living,’“New York Times, August 1, 1974.

The Court, however, had now declared: Brown, 347 U.S. at 495.

The increase in actual busing: Matthew Delmont, Why Busing Failed: Race, Media, and the National Resistance to School Desegregation (Berkeley: University of California Press, 2016), 172; Milliken, 418 U.S. at 812–13; Thomas Sugrue, “It’s Not the Bus; It’s Us,” London Review of Books, November 20, 2008.

“And yet, those whose children”: Louis Harris, “Majority of Parents Report School Busing Has Been Satisfactory Experience,” Harris Survey no. 25, March 26, 1981; Erica Frankenberg and Rebecca Jacobsen, “School Integration Polls,” Public Opinion Quarterly 75 (2011): 788, 801; Jonathan Zimmerman, “Joe Biden’s Not Alone in Spreading Myths About Busing and Segregation,” Philadelphia Inquirer, March 12, 2019.

When it was done, the Court: John A. Powell, “A Minority-Majority Nation: Racing the Population in the Twenty-First Century,” Fordham Urban Law Journal 29 (2002): 1395, 1410.

Powell cited Harvard College’s admissions policy: University of California v. Bakke, 438 U.S. 265 (1978).

As a result of the decision: Adam Harris, “What Happens When a College’s Affirmative Action Policy Is Found Illegal,” Atlantic, October 26, 2018; Bakke, 438 U.S. 265.

As a result of the law: Diane I. Osifchok, “Case Note: The Utilization of Intermediate Scrutiny in Establishing the Right to Education for Undocumented Alien Children: Plyler v. Doe,” Pepperdine Law Review 10, no. 1 (1982): 140–41.

Brennan also noted the harm: Plyler v. Doe, 457 U.S. 202, 230 (1982); Osifchok, “Case Note: The Utilization of Intermediate Scrutiny,” 139; Linda Greenhouse, “Danger Zone,” New York Times, October 29, 2014; Driver, Schoolhouse Gate, 351–52.

Plyler was also: Driver, Schoolhouse Gate, 353–54; Plyler, 457 U.S. 202.

When the bus no longer stopped: Kadrmas v. Dickinson, 487 U.S. 450, 450–56 (1988).

The majority opinion rejecting: Kadrmas, 487 U.S. 450.

She was elected: Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (New York: Norton, 2006), 49–51; Judith Olans Brown, Wendy Parmet, and Mary O’Connell, “The Rugged Feminism of Sandra Day O’Connor,” Indiana Law Review 32 (1999): 1219; B. Drummond Ayres Jr., “Woman in the News: ‘A Reputation for Excelling,’” New York Times, July 8, 1981.

He announced her nomination: Lou Cannon, “When Ronnie Met Sandy,” New York Times, July 7, 2005; Steven Weisman, “Stewart Will Quit High Court July 3; Reasons Not Given,” New York Times, June 19, 1981; John MacKenzie, “Potter Stewart Is Dead at 70; Was on High Court 23 Years,” New York Times, December 8, 1985; Kathleen Sullivan, “Chief Justice Rehnquist ’52 and Justice O’Connor ’52: A Tribute by Kathleen M. Sullivan, Stanley Morrison Professor of Law and Former Dean,” Stanford Lawyer no. 73 (Fall 2005); Linda Greenhouse, “Senate Confirms Judge O’Connor; She Will Join High Court Friday,” New York Times, September 22, 1981.

Drawing on the writings: Suzanna Sherry, “Civic Virtue and the Feminine Voice in Constitutional Adjudication,” Virginia Law Review 72, no. 3 (April 1986): 543, 596.

There was therefore: Kadrmas, 487 U.S. at 458–59.

It was still “difficult to imagine”: Kadrmas, 487 U.S. at 461–62; Bureau of Labor Statistics, “Family Poverty Status and Family Poverty Level Historical Variables” (National Longitudinal Surveys, 2016).

A law that erects barriers: Kadrmas, 487 U.S. at 466–71; Jeffrey Jenkins, “No Free Ride to the Schoolhouse Gate: Equal Protection Analysis in Kadrmas v. Dickinson Public Schools,” New Mexico Law Review 20 (1990): 161, 171–72.

“Now they have stated some conclusions”: Mary McGrory, “The Court Missed the Bus,” Washington Post, June 28, 1988.

One single father in San Diego: Driver, Schoolhouse Gate, 361; Mario Koran, “San Diego Unified Sends Parents Who Can’t Pay for School Bus Rides to a Collections Agency,” Voice of San Diego, November 8, 2017; Kathleen Conti, “Most School Districts Can’t Put Brakes on Bus Fees,” Boston Globe, August 20, 2015; “Some States Allow School Districts to Charge Parents for School Bus Transportation or to Advertise in or on School Buses to Raise Additional Revenue” (report, Florida Legislature Office of Program Policy Analysis & Government Accountability, December 2011).

After the orders were lifted: National Advisory Commission on Civil Disorders, Report, 11–12, 50; Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 247 (1991); Linda Greenhouse, “Justices Rule Mandatory Busing May Go, Even If Races Stay Apart,” New York Times, January 16, 1991; Sean F. Reardon et al., “Brown Fades: The End of Court-Ordered School Desegregation and the Resegregation of American Public Schools,” Journal of Policy Analysis and Management 31, no. 4 (2012): 12, 34; Gary Orfield et al., “Brown at 60: Great Progress, a Long Retreat and an Uncertain Future” (UCLA Civil Rights Project, Los Angeles, May 2014), 10, 12, 36.

It was communities choosing diversity: Marcia Coyle, The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2013), 31; Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007); Chemerinsky, Case Against the Supreme Court, 48.

Still, even with Kennedy’s qualification: Chemerinsky, Case Against the Supreme Court, 47–48; Parents Involved in Community Schools, 551 U.S. 701.

Now that localities were using: Parents Involved in Community Schools, 551 U.S. 701; Joan Biskupic, The Chief: The Life and Turbulent Times of Chief Justice John Roberts (New York: Basic Books, 2018), 190.

It was a striking statement: Linda Greenhouse, “Justices Limit the Use of Race in School Plans for Integration,” New York Times, June 19, 2007; Parents Involved in Community Schools, 551 U.S. 701; Coyle, Roberts Court, 114–15; Milliken, 418 U.S. at 741; Chemerinsky, Case Against the Supreme Court, 48, 145–46.

If it had, American education: Driver, Schoolhouse Gate, 326.

There are also profound: Emma Brown, “In 23 States, Richer School Districts Get More Local Funding Than Poorer Districts,” Washington Post, March 12, 2015; Rebecca Klein, “School Funding Inequality Makes Education ‘Separate and Unequal,’ Arne Duncan Says,” Huffington Post, March 16, 2015; National Center for Education Statistics, Table A-1: “Current Expenditures Minus Federal Revenue and Other Than Impact Aid Per Pupil in Membership, by Poverty Quartile and State,” nces.ed.gov/edfin/Fy11_12_tables.asp; Natasha Ushomirsky and David Williams, “Funding Gaps: Too Many States Still Spend Less on Educating Students Who Need the Most” (Washington, D.C.: Education Trust, 2015); Sarah Mervosh, “How Much Wealthier Are White School Districts Than Nonwhite Ones? $23 Billion, Report Says,” New York Times, February 27, 2019.

In Pennsylvania, Bryn Athyn: Natasha Bertrand, “This Connecticut Metro Area Is the Most Unequal Place in America,” Business Insider, December 9, 2014; “Spending Per Student,” Connecticut School Finance Project, ctschoolfinance.org/spending/per-student; Connecticut Coalition for Justice in Education Funding v. Rell, 2, 36 (Conn. Super. Ct. Sept. 7, 2016); Emma Brown, “Pa. Schools Are the Nation’s Most Inequitable. The New Governor Wants to Fix That,” Washington Post, April 22, 2015.

If school district funding levels: Brian Jacob and Jens Ludwig, “Improving Educational Outcomes for Poor Children,” Focus, Fall 2009, 56; Julia B. Isaacs, “Starting School at a Disadvantage: The School Readiness of Poor Children,” Brookings Institution, March 2012; Marguerite Spencer and Rebecca Reno, “The Benefits of Racial and Economic Integration in Our Education System: Why This Matters for Our Democracy” (Kirwan Institute for the Study of Race and Ethnicity, Ohio State University, 2009), 11; Evans et al., “Impact of Court-Mandated School Finance Reform”; Andrew Reschovsky and Jennifer Imazeki, “The Development of School Finance Formulas to Guarantee the Provision of Adequate Education to Low-Income Students,” in Developments in School Finance, 1997: Does Money Matter?, ed. W. J. Fowler Jr. (Washington, D.C.: U.S. Department of Education, National Center for Educational Statistics, 1998).

Lower Merion also had a social worker: Brown, “Pa. Schools are the Nation’s Most Inequitable.”

One study found that for students: C. Kirabo Jackson, Rucker Johnson, and Claudia Persico, “The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms,” Quarterly Journal of Economics 131, no. 1 (2016): 157, 160, 201–3, 212–13; C. Kirabo Jackson, Rucker Johnson, and Claudia Persico, “The Effect of School Finance Reforms on the Distribution of Spending, Academic Achievement, and Adult Outcomes” (working paper, National Bureau of Economic Research, Cambridge, Mass., May 2014), 5, 8, 38, 44; Julien Lafortune et al., School Finance Reform and the Distribution of Student Achievement, American Economic Journal: Applied Economics 10, no 2 (2018): 1–26; Kevin Carey and Elizabeth Harris, “It Turns Out Spending More Probably Does Improve Education,” New York Times, December 12, 2016.

In the new urban-suburban school district: Orfield, “Milliken, Meredith,” 416–19.

From 1975 to 1977: Orfield, “Milliken, Meredith,” 416–19.

By 2009–10: Richard Rothstein, “For Public Schools, Segregation Then, Segregation Since,” Economic Policy Institute, 2013, 13; Orfield et al., “Brown at 60,” 10, 12, 36.

The study found that: Orfield, “Milliken, Meredith,” 425; Geoffrey Borman and Maritza Dowling, “School and Inequality: A Multilevel Analysis of Coleman’s Equality of Educational Opportunity Data,” Teachers College Record 112 (2010): 1201; Rucker Johnson, “Long-Run Impacts of School Desegregation and School Quality on Adult Attainments” (working paper, National Bureau of Economic Research, Cambridge, Mass., September 2015), 18–19.

American education today: Rodriguez, 411 U.S. at 71.

They are also doing considerably better: Ronald Brownstein, “The Challenge of Educational Inequality,” Atlantic, May 19, 2016; National Center for Education Statistics, “Status and Trends in the Education of Racial and Ethnic Groups 2017” (U.S. Department of Education, July 2017); Young Invincibles, “Race & Ethnicity as a Barrier to Opportunity: A Blueprint for Higher Education Equity” (Washington, D.C.: Young Invincibles, February 2017), 24; Mitchell Wellman, “Report: The Race Gap in Higher Education Is Very Real,” USA Today, March 7, 2017.

There are also large gaps: Reardon, “Widening Academic Achievement Gap,” 1, 5; Sean Reardon, “The Geography of Racial/Ethnic Test Score Gaps” (working paper, Stanford Center for Education Policy Analysis, April 2016), 24; Pell Institute, Indicators of Higher Education Equity in the United States, 2018 Historical Trend Report; Annie Waldman, “New Data Reveals Stark Gaps in Graduation Rates Between Poor and Wealthy Students,” ProPublica, September 24, 2015.

“As the children of the rich”: Reardon, “Widening Academic Achievement Gap,” 27; Facundo Alvaredo, World Inequality Report 2018, World Inequality Lab, 6, wir2018.wid.world/files/download/wir2018-full-report-english.pdf.

Chapter Four: Campaign Finance

The reforms included: Buckley v. Valeo, 424 U.S. 1 (1976).

“The first is money”: Michael Kazin, “The Nation; One Political Constant,” New York Times, April 1, 2001.

Many of the rules: Rick Hasen, “The Nine Lives of Buckley v. Valeo” (Legal Studies Paper No. 2010–15, Loyola Law School, Los Angeles, 2010), 3–4; Bradley Smith, “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform,” Yale Law Journal 105 (1996): 1049, 1054–55; Anthony Johnstone, “Recalibrating Campaign Finance Law,” Yale Law & Policy Review 32 (2013): 217, 220–21.

There was no central office: Hasen, “Nine Lives of Buckley,” 5–6; U.S. Federal Election Commission, The Presidential Public Funding Program (April 1993), 76–78 (appendix 4).

The Committee for the Re-election: Adam Lioz, “Buckley v. Valeo at 40” (New York: Dēmos, 2016); Ciara Torres-Spelliscy, “How Much Is an Ambassadorship? And the Tale of How Watergate Led to a Strong Foreign Corrupt Practices Act and a Weak Federal Election Campaign Act,” Chapman Law Review 16 (2012): 71; Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2016), 256; Anthony Gaughan, “The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform,” Ohio State Law Journal 77 (2016): 791, 795–96.

Much of the money: Lioz, “Buckley v. Valeo at 40”; Richard Hasen, Plutocrats United (New Haven, Conn.: Yale University Press, 2016), 19–20; Brian Mooney, “Post-Watergate Campaign Funding Reforms Fade Away,” Boston Globe, June 21, 2012; Torres-Spelliscy, “How Much Is an Ambassadorship?”; Graetz and Greenhouse, The Burger Court, 256; Gaughan, “Forty-Year War on Money in Politics,” 796.

In a September 1973 Gallup poll: Buckley, 424 U.S. 1; Torres-Spelliscy, “How Much Is an Ambassadorship?”; United States Senate, “Final Report of the Select Committee on Presidential Campaign Activities” (Washington, D.C.: U.S. Government Printing Office, 1974), 569; Gaughan, “Forty-Year War on Money in Politics,” 800; Hasen, “Nine Lives of Buckley,” 7; Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (New York: Oxford University Press, 2014), 137.

To ensure that the regulations: Hasen, Plutocrats United, 19; Lioz, “Buckley v. Valeo at 40.”

The most important challenges: Lioz, “Buckley v. Valeo at 40”; Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975).

The liberals and civil libertarians: Lioz, “Buckley v. Valeo at 40”; Buckley, 519 F.2d 821.

Since it was not: Buckley, 519 F.2d 821.

In the same way, the D.C. Circuit held: Jessica Levinson, “The Original Sin of Campaign Finance Law: Why Buckley v. Valeo Is Wrong,” University of Richmond Law Review 47 (2013): 881, 891–92; Buckley, 519 F.2d 821; United States v. O’Brien, 391 U.S. 367 (1968).

“It would be strange indeed”: Buckley, 519 F.2d 821; Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).

Ford needed to nominate: Lesley Oelsner, “Douglas Quits Supreme Court; Ford Hails 361/2-Year Service,” New York Times, November 13, 1975; Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979), 472–76; Robert McFadden, “The President’s Choice: John Paul Stevens,” New York Times, November 29, 1975, FindLaw, s.v. “John Paul Stevens,” supreme.findlaw.com/supreme_court/justices/stevens.html.

Stevens was sworn in: Oelsner, “Douglas Quits Supreme Court”; Woodward and Armstrong, The Brethren, 472–76; McFadden, “President’s Choice: John Paul Stevens”; “John Paul Stevens,” FindLaw; Joan Biskupic, The Chief: The Life and Turbulent Times of Chief Justice John Roberts (New York: Basic Books, 2018), 41.

In less than three months: Buckley, 424 U.S. 1.

At the same time: Buckley, 424 U.S. 1 at 5; Levinson, “Original Sin of Campaign Finance Law,” 902–4; Buckley, 424 U.S. at 20–21.

Therefore, it insisted: Richard Hasen, “The Untold Drafting History of Buckley v. Valeo,” Election Law Journal 2 (2003): 241; Heather Gerken, “The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties,” Marquette Law Review 97 (2013): 903, 908; Buckley, 424 U.S. 48–49; Graetz and Greenhouse, The Burger Court, 259; Lioz, “Buckley v. Valeo at 40,” 6, 10.

It gave wealthy individuals: Buckley, 424 U.S. 1; Levinson, “Original Sin of Campaign Finance Law,” 902–4.

In this first major campaign finance ruling: Burt Neuborne, “Campaign Finance Reform & the Constitution: A Critical Look at Buckley v. Valeo” (New York: Brennan Center for Justice, 1998), 12; Richard Hasen, “Untold Drafting History,” 241.

The Court’s equation of money: Buckley, 424 U.S. at 16; Levinson, “Original Sin of Campaign Finance Law,” 892–93; Sorrell v. Randall, 126 S. Ct. 2479, 2508–9 (2006); International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); David Kairys, “Money Isn’t Speech and Corporations Aren’t People,” Slate, January 22, 2010.

One commentator has said: Lioz, “Buckley v. Valeo at 40.”

“I thought that was a disaster”: Hasen, “Nine Lives of Buckley,” 23.

Buckley adopted, according to this critique: Hasen, “Untold Drafting History,” 244; Lioz, “Buckley v. Valeo at 40,” 5; Graetz and Greenhouse, The Burger Court, 258; David Schultz, “The Case for a Democratic Theory of American Election Law,” University of Pennsylvania Law Review 164 (2016): 259, 260–62.

If the trend of money: J. Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?,” Columbia Law Review 82 (1982): 609, 645.

The vote was 5–4: First National Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978).

That would come: Bellotti, 435 U.S. at 776–77; Graetz and Greenhouse, The Burger Court, 262–63.

He warned, in a memorable phrase: Bellotti, 435 U.S. at 809; Graetz and Greenhouse, The Burger Court, 264–65; Bellotti, 435 U.S. at 804–5, 821.

“By traveling door to door”: United States Postal Service v. Greenburgh Civic Association, 453 U.S. 114, 144 (1981); “Justice Upholds Law Prohibiting Unstamped Matter in Mailboxes,” New York Times, June 26, 1981.

Posters on public property: City Council v. Taxpayers for Vincent, 466 U.S. 789, 803–7, 820 (1984); Stephen Loffredo, “Poverty, Democracy, and Constitutional Law,” University of Pennsylvania Law Review 141 (1993): 1364–65.

It is hard to avoid: Loffredo, “Poverty, Democracy, and Constitutional Law,” 1277, 1364.

The Court in Austin: Miriam Valverde, “Sen. John McCain Fought to Clean Up Money in Politics. Are We Better Off Today?” PolitiFact, August 31, 2018.

It was enacted not long after: Valverde, “Sen. John McCain Fought to Clean Up Money.”

The soft-money loophole allowed: Deborah Goldberg and Ciara Torres-Spelliscy, “Pandora’s Box of Corporate Money in Federal Elections Is Open Again,” Huffington Post, June 6, 2007; Seth Waxman, “Free Speech and Campaign Reform Don’t Conflict,” New York Times, July 10, 2002.

A group of plaintiffs: Federal Election Commission v. McConnell, 540 U.S. 93, 205 (2003); Linda Greenhouse, “A Court Infused with Pragmatism,” New York Times, December 12, 2003; Hasen, Plutocrats United, 28; Matt Ford, “Elizabeth Warren vs. the Roberts Court,” New Republic, August 27, 2018.

The main majority opinion: McConnell v. Federal Election Commission, 540 U.S. 93, 205 (2003); Greenhouse, “A Court Infused”; Hasen, Plutocrats United, 28; Ford, “Elizabeth Warren vs. the Roberts Court.”

Once he arrived: McConnell, 540 U.S. at 205; Greenhouse, “A Court Infused.”

Writing for the four liberal dissenters: Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449 (2007); Marcia Coyle, The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2013), 213–15.

The lawsuit had the potential: Phillip Rucker, “Citizens United Used ‘Hillary: The Movie’ to Take On McCain-Feingold,” Washington Post, January 22, 2010; Dahlia Lithwick, “The Supreme Court Reviews Hillary: The Movie,” Slate, March 24, 2009; Hasen, Plutocrats United, 18; Coyle, Roberts Court, 225; Michael Kang, “The End of Campaign Finance Law,” Virginia Law Review 98 (2012): 2, 8.

He told The New York Times: David Kirkpatrick, “A Quest to End Spending Rules for Campaigns,” New York Times, January 24, 2010; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (New York: Doubleday, 2016), 237.

It was a cursory argument: Coyle, Roberts Court, 224–28.

It was a lot of law: Hasen, Plutocrats United, 18.

The justices had an intense debate: Coyle, Roberts Court, 251–52.

After everything that had occurred: Coyle, Roberts Court, 249–50; Adam Liptak, “Justices Are Pressed for a Broad Ruling in Campaign Case,” New York Times, September 9, 2009.

As was increasingly becoming the norm: Adam Liptak, “Justices, 5–4, Reject Corporate Spending Limit,” New York Times, 21, 2010.

He had strong corporate sympathies: Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Roper v. Simmons, 543 U.S. 551 (2005); Fisher v. University of Texas, 36 S. Ct. 2198 (2016).

Kennedy also helped: Sam Stanton and Darrell Smith, “Justice Kennedy Loves Sacramento, but Friends Doubt He’ll Retire in His Hometown,” Sacramento Bee, June 27, 2018; Cynthia Gorney, “A Cautious Conservatism,” Washington Post, December 14, 1987.

He was right: John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012), 232–33; Kenneth Noble, “Bork Irked by Emphasis on His Role in Watergate,” New York Times, July 2, 1987; John C. Jeffries, Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994), 555; Gorney, “A Cautious Conservatism.”

Political speech is: Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 252; Coyle, Roberts Court, 270; Stanton and Smith, “Justice Kennedy Loves Sacramento.”

They “blaze[d] through our precedents”: Citizens United, 558 U.S. 310 (Stevens, J., dissenting); Liptak, “Justices, 5–4, Reject Corporate Spending Limit”; Coyle, Roberts Court, 273.

Corporate “personhood” can be: Citizens United, 558 U.S. 310 (Stevens, J., dissenting).

With the Court’s decision: Bellotti, 435 U.S. at 809.

It was, he said: Robert Barnes and Dan Eggen, “Supreme Court Rejects Limits on Corporate Spending on Political Campaigns,” Washington Post, January 22, 2010; Coyle, Roberts Court, 273.

Unlike the Court: Dan Eggen, “Poll: Large Majority Opposes Supreme Court’s Decision on Campaign Financing,” Washington Post, February 17, 2010; Elizabeth Hartfield, “Stephen Colbert: Thank You, God Bless You and God Bless Citizens United,” ABC News, January 13, 2012.

The same call went out: Kang, “End of Campaign Finance Law,” 1, 3–4; Ari Berman, “Citizens Unite Against ‘Citizens United,’” Nation, August 16, 2010; Daniel Weiner, “Citizens United: Five Years Later” (New York: Brennan Center for Justice, 2015), 1; “Progress Report: Amend the Constitution,” Reclaim the American Dream, reclaimtheamericandream.org/progress-amend/.

There was strong support for this: Kang, “End of Campaign Finance Law,” 2; SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010); “Nine Things You Need to Know About Super PACs,” Sunlight Foundation, January 31, 2012, sunlightfoundation.com/2012/01/31/nine-things-you-need-know-about-super-pacs/; Gerken, “The Real Problem with Citizens United,” 909; Mayer, Dark Money, 237–38; Hasen, Plutocrats United, 33; Coyle, Roberts Court, 276.

On the fifth anniversary: Karl Evers-Hillstrom, Raymond Arke, and Luke Robinson, “A Look at the Impact of Citizens United on Its 9th Anniversary” (Open Secrets, January 21, 2019); Philip Bump, “How Citizens United Is—and Isn’t—to Blame for the Dark Money President Obama Hates So Much,” Washington Post, January 21, 2015.

Kagan, in dissent: Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011); Nina Totenberg, “High Court Takes Another Stab at Campaign Finance,” Morning Edition, NPR, March 28, 2011; Scott Lemieux, “The Five Worst Roberts Court Rulings,” American Prospect, August 1, 2016; Ganesh Sitaraman, The Crisis of the Middle Class Constitution: Why Economic Inequality Threatens Our Republic (New York: Alfred A. Knopf, 2017), 265.

The Court was raising the overall: McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014); Hasen, Plutocrats United, 35; Adam Liptak, “Supreme Court Strikes Down Overall Political Donation Cap,” New York Times, April 2, 2014; “What Is McCutcheon v. FEC?” (New York: Dēmos, April 8, 2014).

Candidates are now: Kenneth Vogel, “Big Money Breaks Out,” Politico, December 29, 2014; Mark McKinnon, “The 100 Rich People Who Run America,” Daily Beast, January 5, 2015; Dan Balz, “‘Sheldon Primary’ Is One Reason Americans Distrust the Political System,” Washington Post, March 28, 2014; Blair Bowie and Adam Lioz, “Billion Dollar Democracy: The Unprecedented Role of Money in the 2012 Elections” (New York: Dēmos, 2013), 10; Thomas Edsall, “Why Is It So Hard for Democracy to Deal with Inequality?,” New York Times, February 15, 2018; Carrie Levine and Dave Levinthal, “GOP Megadonor Miriam Adelson Is Winning a Medal. But Are Republicans Losing the Political Money War?” (Center for Public Integrity, November 16, 2018).

The impact the largest corporations: “Billionaires: The Richest People in the World,” Forbes, March 5, 2019; Sarah Hansen, “America’s Largest Public Companies in 2019,” Forbes, May 15, 2019.

There were similar increases: Weiner, “Citizens United: Five Years Later,” 1–4.

In 2018, according to the Center: Evers-Hillstrom et al., “A Look at the Impact of Citizens United”; Weiner, “Citizens United: Five Years Later,” 7.

“I just know”: Ronald Dworkin, “The Decision That Threatens Democracy,” New York Review of Books, May 13, 2010; Hasen, Plutocrats United, 47–48; Daniel Tokaji and Renata Strause, “The New Soft Money: Outside Spending in Congressional Elections” (Columbus, Ohio: Ohio State University Michael E. Moritz College of Law, 2014), moritzlaw.osu.edu/thenewsoftmoney/; Adele Stan, “Who’s Behind Friedrichs?,” American Prospect, October 29, 2015; “Billionaires: The Richest People in the World.”

The candidates came to pledge: Molly Ball, “The Sheldon Adelson Suck-up Fest,” Atlantic, April 2, 2014; Hasen, Plutocrats United, 1–2; Bowie and Lioz, “Billion Dollar Democracy,” 10.

Jolly considered the Republican: Norah O’Donnell, “Are Members of Congress Becoming Telemarketers?,” 60 Minutes, April 24, 2016, cbsnews.com/news/60-minutes-are-members-of-congress-becoming-telemarketers/; Cyra Master, “‘60 Minutes’: Fundraising Demands Turning Lawmakers into Telemarketers,” The Hill, April 24, 2016.

“It seems like I took a nap”: O’Donnell, “Are Members of Congress”; Master, “‘60 Minutes’: Fundraising Demands.”

Minimum-wage employees: “Top Interest Groups Giving Members of Congress, 2016 Cycle” (Open Secrets, 2019), opensecrets.org/industries/mems.php.

“When a majority of citizens”: Martin Gilens and Benjamin Page, “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” Perspectives on Politics 12 (September 2014): 564, 576. For critiques of the Gilens and Page study, see Dylan Matthews, “Remember That Study Saying America Is an Oligarchy? 3 Rebuttals Say It’s Wrong,” Vox, May 9, 2016.

Even President Trump has said: Matthew Goldstein and Ben Protess, “Trump Tax Plan Silent on Carried Interest, a Boon for the Very Rich,” New York Times, April 27, 2017; Jeff Guo, “Trump Said Hedge Funders Were ‘Getting Away with Murder.’ Now He Wants One to Help Run the Economy,” Washington Post, November 30, 2016.

The Legal Services Corporation: Alec MacGillis, “The Billionaires’ Loophole,” New Yorker, March 14, 2016; Aviva Aron-Dine, “An Analysis of the ‘Carried Interest’ Controversy” (Center on Budget and Policy Priorities, 2007); Victor Fleischer, “How a Carried Interest Tax Could Raise $180 Billion,” New York Times, June 5, 2015; “LSC Receives $25 Million Spending Boost from Congress,” Legal Services Corporation, March 23, 2018.

The bill died quietly: MacGillis, “Billionaires’ Loophole”; Michael J. de la Merced, “Schwarzman’s Unfortunate War Analogy,” New York Times, August 16, 2010; “Top Interest Groups Giving to Members of Congress, 2018 Cycle” (Open Secrets, 2019), opensecrets.org/industries/mems.php.

The Center for Responsive Politics: “Hedge Funds” (Open Secrets, 2019), opensecrets.org/industries/indus.php?ind=F2700.

Mother Jones ran an exposé: Stuart Silverstein, “This Is Why Your Drug Prescriptions Cost So Damn Much,” Mother Jones, October 21, 2016.

It calculated that if Part D: Marc-André Gagnon and Sidney Wolfe, “Mirror, Mirror on the Wall: Medicare Part D Pays Needlessly High Brand-Name Drug Prices Compared with Other OECD Countries and with Government Programs” (policy brief, Carleton University School of Public Policy and Administration, Ottawa, Ontario, and Public Citizen, Washington, D.C., July 23, 2015), 2.

One survey found that: Gagnon and Wolfe, “Mirror, Mirror on the Wall,” 6.

In 2015, the pharmaceutical industry: Stuart Silverstein, “Lobbyists, Campaign Cash Help Drug Industry Stymie Bid to Restrain Medicare Prescription Costs” (Open Secrets, October 16, 2016); “Top Interest Groups Giving Members of Congress, 2016 Cycle.”

According to an analysis: David Kamin et al., “The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the 2017 Tax Legislation,” Minnesota Law Review 103 (2018); Noah Bierman and Brian Bennett, “Trump Notches First Big Legislative Win with Tax-Cut Bill—But It’s Far from His Populist Promises,” Los Angeles Times, December 20, 2017; Justin Fox, “Tax Bill Will Deliver a Corporate Earnings Gusher,” Bloomberg, December 27, 2017.

General Motors had $4.3 billion: Fox, “Tax Bill Will Deliver”; “60 Profitable Fortune 500 Companies Avoided All Federal Income Taxes in 2018” (Washington, D.C.: Institute on Taxation and Economic Policy, April 11, 2019).

Of the 11,078 lobbyists registered: Geoff West, “Tax Lobbyists Donated Millions to Members of Congress” (Open Secrets, December 22, 2017).

Senator Lindsey Graham: Cristina Marcus, “GOP Lawmaker: Donors Are Pushing Me to Get Tax Reform Done,” The Hill, November 11, 2017; Geoff West, “Tax Lobbyists Donated Millions to Members of Congress” (Open Secrets, December 22, 2017); Rebecca Savransky, “Graham: ‘Financial Contributions Will Stop’ If GOP Doesn’t Pass Tax Reform,” The Hill, November 9, 2017.

The high levels of opposition: Jennifer Agiesta, “Public Opposition to Tax Bill Grows as Vote Approaches,” CNN, December 19, 2017; Gilens and Page, “Testing Theories of American Politics,” 564, 576; Lawrence Norden, Shyamala Ramakrishna, and Sidni Frederick, “How Citizens United Changed Politics and Shaped the Tax Bill” (New York: Brennan Center for Justice, November 14, 2017).

The month after President Trump: Jacob Pramuk and Brian Schwartz, “Sheldon Adelson Gives $30 Million in Bid to Save House GOP Majority—and Could Give More This Year,” CNBC, May 10, 2018.

With the role that large campaign contributions: Historical Highest Marginal Income Tax Rates, Tax Policy Center (2018), taxpolicycenter.org/statistics/historical-highest-marginal-income-tax-rates; Amanda Becker, “Three Quarters of Americans Favor Higher Taxes for Wealthy—Reuters/Ipsos Poll,” Reuters, October 11, 2017.

“The result,” says Nobel Prize–winning economist: Paul Krugman, “Challenging the Oligarchy,” New York Review of Books, December 17, 2015; “Historical Highest Marginal Income Tax Rates,” Tax Policy Center.

Progressive tax systems: Facundo Alvaredo, World Inequality Report 2018, Executive Summary (World Inequality Lab), 6, 15, wir2018.wid.world/executive-summary.html.

Support for limits: Bradley Jones, “Most Americans Want to Limit Campaign Spending, Say Big Donors Have Greater Political Influence,” Pew Research Center, May 8, 2018, pewresearch.org/fact-tank/2018/05/08/most-americans-want-to-limit-campaign-spending-say-big-donors-have-greater-political-influence/.

By 2016, only 7 percent said: “Voter Anger with Government and the 2016 Election” (Voice of the People, November 2016), 5, vop.org/wp-content/uploads/2016/11/Dissatisfaction_Report.pdf; American National Election Studies, “Is the Government Run for the Benefit of All, 1964–2012,” ANES Guide to Public Opinion and Electoral Behavior, electionstudies.org/resources/anes-guide/top-tables/?id=59.

Fully 91 percent: Jennifer Finney Boylan, “The Year of the Angry Voter,” New York Times, February 10, 2016; “Why Are 2016 Voters So Angry,” CBS News, May 27, 2016; Patty Culhane, “U.S. Election: The Year of the Angry Voter,” Al Jazeera, April 27, 2016; “Voter Anger with Government and the 2016 Election,” Voice of the People, 5, 17.

Chapter Five: Democracy

The election contest: David Margolick, “The Path to Florida,” Vanity Fair, March 19, 2014; Encyclopædia Britannica, s.v. “Bush v. Gore.”

The Supreme Court halted the recount: Margolick, “Path to Florida”; Encyclopædia Britannica, s.v. “Bush v. Gore.”

If anyone was going to break: Brown v. Board of Education, 347 U.S. 483 (1954); United States v. Nixon, 418 U.S. 683 (1974).

“I mean, it couldn’t be clearer”: Lani Guinier, “Supreme Democracy: Bush v. Gore Redux,” Loyola University Chicago Law Journal 34 (2002): 45; Lorraine Minnite, The Myth of Voter Fraud (Ithaca, N.Y.: Cornell University Press, 2017) 92.

The decision handed Bush: Guinier, “Supreme Democracy,” 45; Minnite, Myth of Voter Fraud, 92; Linda Greenhouse, “Bush Prevails; by Single Vote, Justices End Recount, Blocking Gore After 5-Week Struggle,” New York Times, December 13, 2000; Joan Biskupic, The Chief: The Life and Turbulent Times of Chief Justice John Roberts (New York: Basic Books, 2018), 127–28.

There was another point of continuity: Jack Balkin, “Bush v. Gore and the Boundary Between Law and Politics,” Yale Law Journal 110 (2001): 1407, 1410.

That disparate treatment: Greenhouse, “Bush Prevails”; Mark Brodin, “Bush v. Gore: The Worst (or at Least Second-to-the-Worst) Supreme Court Decision Ever,” Nevada Law Journal 12 (2012): 563, 565–66.

The right to uniform: Jed Rubenfeld, “Not as Bad as Plessy. Worse,” in Bush v. Gore: The Question of Legitimacy, ed. Bruce Ackerman (New Haven, Conn.: Yale Scholarship Online, 2013), 21; Owen Fiss, “The Fallibility of Reason,” in Bush v. Gore: The Question of Legitimacy, ed. Bruce Ackerman (New Haven, Conn.: Yale Scholarship Online, 2013), 89.

One Harvard law professor: John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: PublicAffairs, 2012), 250; Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford University Press, 2001), 81–82.

To the decision’s critics: Bush v. Gore, 531 U.S. 98, 109 (2000); Chad Flanders, “Bush v. Gore as Precedent” (Student Scholarship Papers, Yale Law School, March 2007), digitalcommons.law.yale.edu/student_papers/36; United States v. Virginia, 518 U.S. 515 (1996) (Scalia, J., dissenting).

Souter and Breyer agreed: Greenhouse, “Bush Prevails.”

While the other dissenters: Bush, 531 U.S. at 128–29, 144, 158; Greenhouse, “Bush Prevails.”

“When I was faced with a gross”: Rubenfeld, “Not as Bad as Plessy,” 36; Margaret Jane Radin, “Can the Rule of Law Survive Bush v. Gore?,” in Bush v. Gore: The Question of Legitimacy, ed. Bruce Ackerman (New Haven, Conn.: Yale Scholarship Online, 2013), 125; Jonathan Schell, “Letter from Ground Zero,” Nation, July 15, 2004.

Gore, speaking from his vice presidential: David Sanger, “The 43rd President: The Texas Governor; Bush Pledges to Be President for ‘One Nation,’ Not One Party; Gore, Conceding, Urges Unity,” New York Times, December 14, 2000.

When Warren was asked: Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964); Robert McKay, “Mr. Justice Brennan, Baker v. Carr, and the Judicial Function,” Rutgers-Camden Law Journal 4 (1972).

In the same year: South Carolina v. Katzenbach, 383 U.S. 301 (1966); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Joshua Houston, “A Right to Preserve All Others: Reflections on the Poll Tax,” Texas Interfaith Center for Public Policy, 2015.

“It has asserted”: Samuel Issacharoff, “The Court in the Crossfire,” New York Times, December 14, 2000; Richard Hasen, “Bush v. Gore and the Future of Equal Protection Law in Elections,” Florida State University Law Review 29 (2001): 377, 380–81, 381n17.

Bush v. Gore cannot be taken seriously: Matt Vasilogambros, “Voting Lines Are Shorter—But Mostly for Whites,” Stateline, Pew Charitable Trusts, February 15, 2018; Hasen, “Bush v. Gore and the Future of Equal Protection,” 386–90; Fatima Hussein, “Republicans Limiting Early Voting in Marion County, Letting It Bloom in Suburbs,” Indianapolis Star, August 10, 2017.

Lower federal courts: Josh Blackmun, “Justice Thomas Cites the Bush v. Gore ‘Unprecedent’ in Arizona Dissent,” Josh Blackmun’s Blog, June 17, 2013; Adam Liptak, “Bush v. Gore Set to Outlast Its Beneficiary,” New York Times, December 22, 2008.

Its real message, she said: Guinier, “Supreme Democracy,” 23–26, 32, 45, 48; Lani Guinier biography, Harvard Law School, hls.harvard.edu/faculty/directory/10344/Guinier.

Under pressure from Karl Rove: Justin Driver, “Rules, the New Standards: Partisan Gerrymandering and Judicial Manageability After Vieth v. Jubelirer,” George Washington Law Review 73 (2005): 1166, 1170; J. Gerald Herbert and Marina Jenkins, “The Need for State Redistricting Reform to Rein in Partisan Gerrymandering,” Yale Law & Policy Review 29 (2010): 543, 550n39.

Although there were more: Driver, “Rules, the New Standards,” 1166, 1170; Herbert and Jenkins, “Need for State Redistricting Reform,” 543, 550n39.

Kennedy, who provided: Vieth v. Jubelirer, 541 U.S. 267 (2004).

Stevens did not invoke: Bush, 531 U.S. 98 (2000).

As voting data became: Laura Royden, Michael Li, and Yurij Rudensky, Extreme Gerrymandering & the 2018 Midterm (New York: Brennan Center for Justice, 2018).

After all the buildup: Ariane de Vogue, “Anthony Kennedy Doesn’t Tip Hand in Gerrymandering Case,” CNN, October 4, 2017; Gill v. Whitford, 138 S. Ct. 1916 (2018), and Benisek v. Lamone, 138 S. Ct. 1942 (2018).

His confirmation fulfilled: Michael Shear, “Supreme Court Justice Anthony Kennedy Will Retire,” New York Times, June 27, 2018; Mark Landler and Maggie Haberman, “Brett Kavanaugh Is Trump’s Pick for Supreme Court,” New York Times, July 9, 2018; Sheryl Gay Stolberg, “Kavanaugh Is Sworn In After Close Confirmation Vote in Senate,” New York Times, October 6, 2018.

In Maryland, Democrats: Adam Liptak, “Supreme Court Bars Challenges to Partisan Gerrymandering,” New York Times, June 27, 2019; Rucho v. Common Cause, No. 18-422 (U.S. June 27, 2019); Matt Ford, “A Partisan Supreme Court Upholds Partisan Power,” New Republic, June 27, 2019.

“There are no legal standards”: Liptak, “Supreme Court Bars Challenges”; Rucho, No. 18-422 (U.S. June 27, 2019).

Once again, the Court: Rucho, No. 18-422 (U.S. June 27, 2019); Adam Liptak, “Supreme Court Avoids an Answer on Partisan Gerrymandering,” New York Times, June 18, 2018; Gill, 138 S. Ct. 1916 (2018); Benisek, 138 S. Ct. 1942 (2018); Gill v. Whitford, No. 16-1161 (U.S. Supreme Court, June 18, 2018); Guinier, “Supreme Democracy,” 26–27.

Once again, the “robust and engaged citizens”: Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

According to the same study: “Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification” (New York: Brennan Center for Justice, 2006).

One aide to a Republican state legislator: John Nichols, “ALEC Exposed: Rigging Elections,” Nation, August 1–8, 2011; Edward Foley, “Crawford v. Marion County Election Board: Voter ID, 5–4? If So, So What?,” Election Law Journal 7 (2008): 63, 64; Michael Wines, “Some Republicans Acknowledge Leveraging Voter ID Laws for Political Gain,” New York Times, September 16, 2016.

Fees for birth certificates: Foley, “Crawford v. Marion County Election Board,” 64–67; Linda Greenhouse, “In a 6-to-3 Vote, Justices Uphold a Voter ID Law,” New York Times, April 29, 2008; Brief for Petitioner, Crawford v. Marion County Election Board, No. 07-21, April 28, 2008.

One study released: David Schultz, “Less Than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” William Mitchell Law Review 34 (2008): 483, 486; Justin Levitt, “The Truth About Voter Fraud” (New York: Brennan Center for Justice, 2007); John Ahlquist, Kenneth Mayer, and Simon Jackman, “Alien Abduction and Voter Impersonation in the 2012 U.S. General Election: Evidence from a Survey List Experiment,” Election Law Journal 13 (2014): 460.

Stevens left open the possibility: Crawford v. Marion County Election Board, 553 U.S. 181 (2008); Encyclopædia Britannica, s.v. “John Paul Stevens,” britannica.com/biography/John-Paul-Stevens.

In both circumstances: Crawford, 553 U.S. 181.

“From all accounts”: Associated Press, “Nuns with Dated ID Turned Away at Ind. Polls,” NBCNews.com, May 6, 2008.

Some of the laws are stricter: Manny Fernandez, “Texas’ Voter ID Law Does Not Discriminate and Can Stand, Appeals Panel Rules,” New York Times, April 27, 2018; “Voter ID History,” National Conference of State Legislatures, ncsl.org/research/elections-and-campaigns/voter-id-history.aspx.

These studies confirm: Michael Wines, “Wisconsin Strict ID Law Discouraged Voters, Study Finds,” New York Times, September 25, 2017.

Indiana’s voter ID law: Crawford, 553 U.S. 181; John Schwartz, “Judge in Landmark Case Disavows Support for Voter ID,” New York Times, October 15, 2013; Robert Barnes, “Stevens Says Supreme Court Decision on Voter ID Was Correct, but Maybe Not Right,” Washington Post, May 15, 2016.

President Johnson signed it: E. W. Kenworthy, “Johnson Signs Voting Rights Bill, Orders Immediate Enforcement; 4 Suits Will Challenge Poll Tax,” New York Times, August 7, 1965.

It brought most of the South: Jon Greenbaum, Alan Martinson, and Sonia Gill, “Shelby County v. Holder: When the Rational Becomes Irrational,” Howard Law Journal 57, no. 3 (2014): 811, 818–19.

President Reagan signed: Greenbaum, Martinson, and Gill, “Shelby County v. Holder,” 813, 823, 835, 867.

The reauthorization passed: Greenbaum, Martinson, and Gill, “Shelby County v. Holder,” 813; Associated Press, “Bush Signs Voting Rights Act Extension,” July 27, 2006.

If the Court struck down: Shelby County v. Holder, 570 U.S. 529 (2013).

Section 4 failed to meet: Shelby County, 570 U.S. 529; Martha McCluskey, “Toward a Fundamental Right to Evade Law? The Rule of Power in Shelby County and State Farm,” Berkeley Journal of African-American Law & Policy 16 (2015): 216, 217; “How Did We Get the Principle of Equal State Sovereignty (in the Shelby County Case)?,” Constitutional Law Prof Blog, June 28, 2013.

He was not impressed: Shelby County, 570 U.S. 529; Greenbaum, Martinson, and Gill, “Shelby County v. Holder,” 855, 865; Nicole Flatow and Ian Millhiser, “Scalia: Voting Rights Act Is ‘Perpetuation of Racial Entitlement,” ThinkProgress, February 27, 2013.

The senators who heard Roberts: U.S. Constitution, amendment XV; Greenbaum, Martinson, and Gill, “Shelby County v. Holder,” 844; Blodgett v. Holden, 275 U.S. 142 (1927).

Posner, a Reagan nominee: Greenbaum, Martinson, and Gill, “Shelby County v. Holder,” 852–54; Shelby County, 570 U.S. 529; Eric Posner, “Supreme Court 2013: The Year in Review,” Slate, June 26, 2013.

“Throwing out preclearance”: Shelby County, 570 U.S. 529.

The Department of Justice ordered Kilmichael: Shelby County, 570 U.S. 529.

He promised that his administration: “John Lewis and Others React to the Supreme Court’s Voting Rights Act Ruling,” Washington Post, June 25, 2013.

There was a clear racial pattern: Maggie Astor, “Seven Ways Alabama Has Made It Harder to Vote,” New York Times, June 23, 2018.

Reducing the number of polling places: Matt Vasilogambros, “Polling Places Remain a Target Ahead of November Elections,” Pew Charitable Trusts Stateline, September 4, 2018.

The U.S. Commission on Civil Rights: Ari Berman, “How the 2000 Election in Florida Led to a New Wave of Voter Disenfranchisement,” Nation, July 28, 2015; Katie Sanders, “Florida Voters Mistakenly Purged in 2000,” Tampa Bay Times, June 15, 2012.

It later turned out: Jonathan Brater, “Voter Purges: The Risks in 2018” (New York: Brennan Center for Justice, 2018).

It also reported that: Brater, “Voter Purges: The Risks in 2018”; Andy Sullivan and Grant Smith, “Use It or Lose It: Occasional Ohio Voters May Be Shut Out in November,” Reuters, June 2, 2016; Kevin Morris, “Voter Purge Rates Remain High, Analysis Finds,” Brennan Center for Justice, August 1, 2019.

If they did not respond: Adam Liptak, “Supreme Court Upholds Health Care Law, 5–4, in Victory for Obama,” New York Times, June 28, 2012; Husted v. A. Philip Randolph Institute, No. 16-980 (U.S. June 11, 2018); Amelia Thomson-DeVeaux, “This Ohio Case Could Change Who Gets Purged from the Rolls,” FiveThirtyEight, January 10, 2018.

Election officials said they sent: Adam Liptak, “Supreme Court Upholds Ohio’s Purge of Voting Rolls,” New York Times, June 11, 2018; Husted, No. 16-980 (U.S. June 11, 2018); Thomson-DeVeaux, “This Ohio Case Could Change Who Gets Purged”; Pete Williams, “Purged from Ohio’s Voter Rolls, This Navy Vet Has His Day at the Supreme Court,” NBC.com, January 10, 2018.

The Sixth Circuit said Ohio’s: Liptak, “Supreme Court Upholds Ohio’s Purge”; Husted, No. 16-680 (U.S. June 11, 2018).

It did not apply to the Ohio purge: Liptak, “Supreme Court Upholds Ohio’s Purge”; Husted, No. 16-680 (U.S. June 11, 2018).

Sotomayor, in a solo dissent: Richard Hasen, “Sonia Sotomayor’s Dissent in the Big Voter-Purge Case Points to How the Law Might Still Be Struck Down,” Slate, June 11, 2018; Husted, No. 16-680 (U.S. June 11, 2018); Liptak, “Supreme Court Upholds Ohio’s Purge”; Husted, No. 16-680 (U.S. June 11, 2018).

A head of the Justice Department: Veronica Stracqualursi, “Battleground Breakdown: Where Ohio Stands in the 2016 Presidential Race,” ABC News, October 17, 2016; Judicial Watch, “Judicial Watch Statement on Supreme Court Decision Upholding Ohio Efforts to Maintain Voter Rolls,” June 11, 2018; Public Interest Legal Foundation, “J. Christian Adams Praises SCOTUS Decision on Ohio Voter List Maintenance Procedures,” June 11, 2018; Ari Berman, “Trump Administration on the Right to Vote: Use It Or Lose It,” Mother Jones, August 8, 2017; Eliza Newlin Carney, “The GOP’s Weapon of Suppression: Voter Purges,” American Prospect, December 15, 2017.

In her concession speech: Sullivan and Smith, “Use It or Lose It”; Brooke Seipel, “Trump’s Victory Margin Smaller Than Total Stein Votes in Key Swing States,” The Hill, December 1, 2016; Richard Fausset, “How Voting Became a Central Issue in the Georgia Governor’s Race,” New York Times, November 3, 2018; Jessica Taylor, “Georgia’s Stacey Abrams Admits Defeat, Says Kemp Used ‘Deliberate’ Suppression to Win,” NPR, November 16, 2018; Johnny Kauffmann, “Georgia Law Allows Tens of Thousands to Be Wiped from Voter Rolls,” NPR, October 22, 2018.

“They went after minority counties”: Jonathan Brater et al., “Purges: A Growing Threat to the Right to Vote” (New York: Brennan Center for Justice, 2018); Morris, “Voter Purge Rates.”

It was the right advice: Kevin Morris and Myrna Perez, “Florida, Georgia, North Carolina Still Purging Voters at High Rates” (New York: Brennan Center for Justice, October 1, 2018.)

When voting does not matter: Thomas Wolf and Peter Miller, “How Gerrymandering Kept Democrats from Winning Even More Seats Tuesday,” Washington Post, November 8, 2018; Alan Blinder, “New Election Ordered in North Carolina Race at Center of Fraud Inquiry,” New York Times, February 21, 2019.

Not all of that structural: David Lieb, “GOP Won More Seats in 2018 Than Suggested by Vote Share,” Associated Press, March 21, 2019.

Weakening the Voting Rights Act: Vann R. Newkirk II, “How Voter ID Laws Discriminate,” Atlantic, February 18, 2017.

There is every reason to believe: Michele E. Gilman, “A Court for the One Percent, Utah Law Review 2 (2014): 434, citing Larry Bartels, Unequal Democracy (Princeton, N.J.: Princeton University Press, 2018), 3–4, 37.

Chapter Six: Workers

Ledbetter, who was concerned: Lilly Ledbetter, Grace and Grit: My Fight for Equal Pay and Fairness at Goodyear and Beyond (New York: Three Rivers Press, 2012), 15, 18, 22–3, 25, 82; Don Noble, “‘Grace and Grit’ Details Lilly Ledbetter’s Fight for Equality,” Tuscaloosa News, March 11, 2012; “Lilly Ledbetter’s Fight for Equal Pay Brings Her Back to Supreme Court,” Birmingham News, September 1, 2018; Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

When the going got rough: Ledbetter, Grace and Grit, 15, 22–23, 25, 41–42, 44, 91, 96, 98, 110, 117, 154; Noble, “‘Grace and Grit.’”

“The way she said it”: Ledbetter, Grace and Grit, 14–16, 222; Noble, “‘Grace and Grit’”; “Lilly Ledbetter’s Fight for Equal Pay,” Birmingham News; Ledbetter, 550 U.S. 618.

“It was clear that Goodyear”: Ledbetter, Grace and Grit, 222; Noble, “‘Grace and Grit’”; “Lilly Ledbetter’s Fight for Equal Pay,” Birmingham News; Ledbetter, 550 U.S. 618.

When the case went to trial: Ledbetter, 550 U.S. 618; Linda Greenhouse, “Justices’ Ruling Limits Lawsuits on Pay Disparity,” New York Times, May 30, 2007; Steven Greenhouse, “Experts Say Decision on Pay Reorders Legal Landscape,” New York Times, May 30, 2007; Tessa Stuart, “Meet the Woman Trying to Smash the Gender Pay Gap,” Rolling Stone, February 1, 2016.

It did not matter: Ledbetter, 550 U.S. 618; Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 186.

She also complained: Ledbetter, 550 U.S. 618 (Ginsburg, J., dissenting).

Ledbetter had no way to know: Ledbetter, 550 U.S. 618 (Ginsburg, J., dissenting).

“Once again,” she wrote: Ledbetter, 550 U.S. 618 (Ginsburg, J., dissenting).

Hillary Clinton, who was beginning: Patrick Healy, “Campaign as Trailblazer, by Proxy and Association,” New York Times, June 12, 2007; Caroline Frederickson, “In Favor of Ledbetter Fair Pay Act,” The Hill, June 27, 2007; Noble, “‘Grace and Grit.’”

Judges would go on: Robert Pear, “Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama,” New York Times, January 4, 2009; Greenhouse, “Experts Say Decision on Pay.”

With Ledbetter looking on: Robert Pear, “Congress Relaxes Rules on Suits over Pay Inequity,” New York Times, January 27, 2009; Sheryl Gay Stolberg, “Obama Signs Equal-Pay Legislation,” New York Times, January 29, 2009.

Congress had used: David J. Garrow, “Toward a Definitive History of Griggs v. Duke Power Co.,” Vanderbilt Law Review 67 (2014): 197, 200–1; Robert Belton, “Title VII at Forty: A Brief Look at the Birth, Death, and Resurrection of the Disparate Impact Theory of Discrimination,” Hofstra Labor & Employment Law Journal 22 (2005): 431, 433.

Although they were formally: Garrow, “Toward a Definitive History of Griggs,” 209–13, 18; Deborah Widiss, “Griggs at Midlife,” Michigan Law Review 113 (2015): 993, 998; Griggs v. Duke Power Co., 401 U.S. 424 (1971).

the civil rights lawyers: Belton, “Title VII at Forty,” 438–40.

The ruling was a clear message: Griggs, 401 U.S. 424; Linda Greenhouse, “Job Ruling Makes It Clear: Court Has Shifted to the Right,” New York Times, June 7, 1989.

“If an employment practice”: Griggs, 401 U.S. 424; Greenhouse, “Job Ruling Makes It Clear.”

Griggs was quickly recognized: Garrow, “Toward a Definitive History of Griggs,” 199, 234; Widiss, “Griggs at Midlife,” 993.

The New York Times called Griggs: Melissa Hart, “From Wards Cove to Ricci: Struggling Against the ‘Built-In Headwinds’ of a Skeptical Court,” Wake Forest Law Review 46 (2011): 261, 263; Greenhouse, “Job Ruling Makes It Clear.”

Even as the Court: Linda Greenhouse, “The ‘Quota’ Dispute,” New York Times, July 21, 1990.

With its holding, the Court gave women: Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

They pointed to practices: Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

It was difficult: Hart, “From Wards Cove to Ricci,” 267–68.

“One wonders,” he concluded: Hart, “From Wards Cove to Ricci,” 268; Wards Cove, 490 U.S. 642 (1989).

In a third case: Linda Greenhouse, “A Changed Court Revises Rules on Civil Rights,” New York Times, June 18, 1989.

The paper noted: Greenhouse, “A Changed Court Revises Rules.”

The Court, which had once: Adam Clymer, “Civil Rights Bill Is Passed by House,” New York Times, November 8, 1991; Adam Clymer, “Senate Approves Civil Rights Bill, 95–5,” New York Times, October 31, 1991; Donald R. Livingston, “The Civil Rights Act of 1991 and EEOC Enforcement,” Stetson Law Review 23 (1993): 53–54.

One of the most prominent: Michael Selmi, “The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions,” Wisconsin Law Review 2014, no. 5: 953; Stolberg, “Obama Signs Equal-Pay Legislation.”

He married his high school sweetheart: Workplace Fairness: Has the Supreme Court Misinterpreted Laws Designed to Protect American Workers? Hearing Before the Senate Committee on the Judiciary, 111th Cong. (2009) (statement of Jack Gross), judiciary.senate.gov/download/testimony-of-grosspdf.

“They claimed that this”: Workplace Fairness (statement of Jack Gross); Yuki Noguchi, “Age Discrimination Suits Jump, but Wins Are Elusive,” Morning Edition, NPR, February 16, 2012.

The St. Louis–based: Gross v. FBL Financial Services, Inc., 557 U.S. 167.

One barred negative employment actions: Gross, 557 U.S. 167; Brian Noonan, “The Impact of Gross v. FBL Financial Services, Inc. and the Meaning of the But-For Requirement,” Suffolk University Law Review 43 (2010): 921, 923.

The Court had engaged: Gross, 557 U.S. 167 (Stevens, J., dissenting) (internal quotation omitted).

Gross said his friends: Workplace Fairness (statement of Jack Gross); Arthur Delaney, “Chuck Grassley, Tom Harkin Strike Back Against Supreme Court on Age Discrimination,” Huffington Post, March 13, 2012.

Congress has still not enacted: Workplace Fairness (statement of Jack Gross); Robert Weiner and Daniel Khan, “Iowa Case Shows Age Discrimination Persists, Despite Law,” Des Moines Register, May 11, 2016.

They could also see: Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

Kwapnoski was finally promoted: Jami Floyd, “Women Accuse Wal-Mart of Bias,” ABC News, June 19, 2019; “Christine Kwapnoski,” Wal-Mart Class Website, March 29, 2011, walmartclass.com/staticdata/mar29brief/11Christine%20Kwapnoski.329.pdf; Michael Corkery, “Betty Dukes, Greeter Whose Walmart Lawsuit Went to Supreme Court, Dies at 67,” New York Times, July 18, 2017; First Amended Complaint, Dukes v. Wal-Mart Stores, No. C-01-2252 (N.D. Cal. 2001).

The Court made it clear: Wal-Mart, 564 U.S. 338; Suzette Malveaux, “How Goliath Won: The Future Implications of Dukes v. Wal-Mart,” Northwestern University Law Review Colloquy 106 (2011): 34, 38–39.

The dissenters would have: Wal-Mart, 564 U.S. 338; Adam Liptak, “Justices Rule for Wal-Mart in Class-Action Bias Case,” New York Times, June 20, 2011.

Vance also complained: Vance v. Ball State University, 570 U.S. 421 (2013); Brief for Petitioner at 6–7, Vance, 570 U.S. 421 (2013) (No. 11-556); “Title VII—Employer Liability for Supervisor Harassment—Vance v. Ball State University,” Harvard Law Review 127 (2013): 398–99.

In her lawsuit, Vance: Vance, 570 U.S. 421.

Controlling a subordinate’s: Vance, 570 U.S. 421.

It was a striking thing: Vance, 570 U.S. 421.

Much of this early suppression: Elisabeth Israels Perry and Karen Manners Smith, The Gilded Age and Progressive Era: A Student Companion (New York: Oxford University Press, 2006), 138; Encyclopaedia Britannica, s.v. “Ludlow Massacre.”

In the protective environment: Julia Wolfe and John Schmitt, “A Profile of Union Workers in State and Local Government,” Economic Policy Institute, June 7, 2018; Kate Andrias, “The New Labor Law,” Yale Law Journal 126 (2016): 1; “Union Members—2018,” Bureau of Labor Statistics, January 18, 2019, www.bls.gov/news.release/archives/union2_01182019.htm.

As one commenter said: Jake Rosenfeld, Patrick Denice, and Jennifer Laird, “Union Decline Lowers Wages of Non-Union Workers,” Economic Policy Institute, August 30, 2016; Andrias, “New Labor Law,” 1; Robert Gebelhoff, “Why Are Unions in the U.S. So Weak,” Washington Post, August 1, 2016.

The labor market has changed: Drew DeSilver, “Job Categories Where Union Membership Has Fallen Off Most,” Pew Research Center, April 27, 2015; Dan Kopf, “Union Membership in the US Keeps On Falling, Like Almost Everywhere Else.”

The firings killed off: “Right to Work States,” National Right to Work Legal Defense Foundation, 2018, nrtw.org/right-to-work-states/; Joseph McCartin, “The Strike That Busted Unions,” New York Times, August 2, 2011; Andrew Glass, “Reagan Fires 11,000 Striking Air Traffic Controllers Aug. 5, 1981,” Politico, August 5, 2008; Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2016), 271–72.

The Mackay decision was a “judicial de-radicalization”: NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938); Julius Getman and Thomas Kohler, “The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity,” in Labor Law Stories, ed. Laura J. Cooper and Catherine L. Fisk (New York: Foundation Press, 2005), 13; Julius Getman, “The National Labor Relations Act: What Went Wrong; Can We Fix It?,” Boston College Law Review 45 (2003): 125, 128.

Congress had put language: James Gray Pope, “How Americans Lost the Right to Strike, and Other Tales,” Michigan Law Review 103 (2004): 518, 527–28, 528n51; Eileen Silverstein, “If You Can’t Beat ’Em, Learn to Lose, but Never Join Them,” Connecticut Law Review 30 (1998): 1371, 1373.

The Mackay doctrine has: Pope, “How Americans Lost the Right.”

In a case pitting a union: NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); NLRB v. Allis-Chalmers Manufacturing Co., 338 U.S. 175, 180 (1967); Lee Modjeska, “Labor and the Warren Court,” Industrial Relations Law Journal 8 (1986): 479, 480, 485–87.

The Court held: Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); Ellen Dannin, Taking Back the Workers’ Law: How to Fight the Assault on Labor Rights (Ithaca, N.Y.: Cornell University Press, 2008), 12; Pope, “How Americans Lost the Right,” 518, 540, 541.

He was confirmed: William Welch, “Thomas Presided over Shift in Policy at EEOC, Records Show,” Associated Press, July 25, 1991; Joel Handler, letter to the editor, New York Times, July 23, 1991.

Thomas served briefly: Welch, “Thomas Presided over Shift.”

In speaking to a group: Handler, letter to the editor, New York Times.

Organized labor came out: Jagan Ranjan, “The Politicization of Clarence Thomas,” Michigan Law Review 101 (2003): 2084, 2091; Steven Holmes, “N.A.A.C.P. and Top Labor Unite to Oppose Thomas,” New York Times, August 1, 1991.

In an editorial: “The Youngest, Cruelest Justice,” New York Times, February 27, 1992.

If they could not reach: Lechmere, Inc., 502 U.S. 527.

A critic writing: Katherine Van Wezel Stone, “The Feeble Strength of One,” American Prospect, Summer 1993.

He was, however: Julius Getman, “The NLRB: What Went Wrong and Should We Try to Fix It?,” Emory Law Journal 64 (2015): 1495, 1500.

For the government to force: Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

If enough workers: Benjamin Sachs, “Agency Fees and the First Amendment,” Harvard Law Review 131 (2018): 1046.

Since Abood was: Abood, 431 U.S. at 211, 222 (1977); Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).

By 2017, public-sector unions: Wolfe and Schmitt, “A Profile of Union Workers.”

“Now there’s a bull’s-eye”: Steven Greenhouse, “Strained States Turning to Laws to Curb Labor Unions,” New York Times, January 3, 2011; Steven Greenhouse, “Wisconsin’s Legacy for Unions,” New York Times, February 22, 2014; Susan Guyett, “Indiana Becomes 23rd ‘Right to Work’ State,” Reuters, February 1, 2012.

All five of the conservative justices: Knox v. Service Employees, 567 U.S. 298 (2012); Adam Liptak, “Unions Come into the Justices’ Cross Hairs, Again,” New York Times, June 12, 2017; A. G. Sulzberger, “Union Bill Is Law, but Debate Is Far from Over,” New York Times, March 11, 2011; “Leading Cases: Constitutional Law—Freedom of Speech—Compelled Subsidization,” Harvard Law Review 126 (2012): 186.

The Economic Policy Institute, which: Celine McNicholas et al., “Janus and Fair Share Feed,” Economic Policy Institute, February 21, 2018.

It appeared that Alito: Harold Meyerson, “Supreme Court Rules Disadvantaged Workers Should Be Disadvantaged Some More,” American Prospect, June 30, 2014; Harris v. Quinn, 573 U.S. 616 (2014).

In a few years, an essay: Harris, 573 U.S. 616; “Supreme Court Strikes Blow Against Government Bullies,” National Right to Work Committee, July 3, 2014, nrtwc.org/supreme-court-strikes-blow-government-bullies; Brianne Gorod, “Sam Alito: The Court’s Most Consistent Conservative,” Yale Law Journal 126 (January 24, 2017).

Public-sector agency fees: Adam Liptak, “Issues and Implications in Supreme Court’s Public Union Case,” New York Times, January 11, 2016; Adam Liptak, “Victory for Unions as Supreme Court, Scalia Gone, Ties 4–4,” New York Times, March 29, 2016; Adele Stan, “Who’s Behind Friedrichs?,” American Prospect, October 29, 2015; Meyerson, “Supreme Court Rules Disadvantaged Workers.”

He was a liberal: Sheryl Gay Stolberg and Adam Liptak, “Merrick Garland’s Path to Nomination Marked by Deference, with Limits,” New York Times, March 16, 2016.

Much of the money: Stolberg and Liptak, “Merrick Garland’s Path to Nomination”; Burgess Everett, “Conservative Group Launches SCOTUS Ad to Pressure Dems,” Politico, June 27, 2018; Margaret Sessa-Hawkins and Andrew Perez, “Dark Money Group Received Massive Donations in Fight Against Obama’s Supreme Court Nominee,” Maplight, October 24, 2017.

In 2019, McConnell made it clear: Lauren Carroll, “Mitch McConnell Exaggerates ‘Tradition’ of Not Confirming Election Year Supreme Court Nominees,” PolitiFact, March 22, 2016; Daniel Victor, “McConnell Says Republicans Would Fill a Supreme Court Vacancy in 2020, Drawing Claims of Hypocrisy,” New York Times, May 29, 2019.

It would be Gorsuch, not Garland: Adam Liptak and Matt Flegenheimer, “Neil Gorsuch Confirmed by Senate as Supreme Court Justice,” New York Times, April 7, 2017; Douglas Martin, “Anne Gorsuch Burford, 62, Reagan E.P.A. Chief, Dies,” New York Times, July 22, 2004; Adam Liptak et al., “In Fall of Gorsuch’s Mother, a Painful Lesson in Politicking,” New York Times, February 4, 2017; Audrey Carlsen and Wilson Andrews, “How Senators Voted on the Gorsuch Confirmation,” New York Times, April 7, 2017.

Maddin said that Gorsuch: David Savage, “What We Learned About Neil Gorsuch During His Confirmation Hearing,” Los Angeles Times, March 24, 2017; Ariane de Vogue and Dan Berman, “Neil Gorsuch Confirmed to the Supreme Court,” CNN, April 7, 2017; Teresa Baldas, “Detroit Man: I Almost Froze to Death, and Gorsuch Didn’t Care,” Detroit Free Press, March 24, 2017.

Janus had chosen not: Adam Liptak, “Supreme Court Ruling Delivers a Sharp Blow to Labor Unions,” New York Times, June 27, 2018.

Even requiring fees: Liptak, “Supreme Court Ruling Delivers.”

Kagan was a liberal: Lisa Foderaro and Christine Haughey, “The Kagan Family: Left-Leaning and Outspoken,” New York Times, June 18, 2010; Peter Baker and Jeff Zeleny, “Obama Picks Kagan as Justice Nominee,” New York Times, May 9, 2010; Janus v. AFSCME, 138 S. Ct. 2448 (2018).

The First Amendment, she insisted: Liptak, “Supreme Court Ruling Delivers.”

It was widely predicted: Amelia Thomas-DeVeaux, “Could the Supreme Court Really Bust Public-Sector Unions?,” FiveThirtyEight, February 26, 2018; Patrick Wright, “Symposium: Evidence Shows Unions Will Survive Without Agency Fees,” SCOTUSblog, December 22, 2017.

When Janus was decided: John Bowden, “Teachers Union Expects to Lose 300K Members If High Court Overturns Fees,” The Hill, May 22, 2018; Noam Scheiber, “Labor Unions Will Be Smaller After Supreme Court Decision, but Maybe Not Weaker,” New York Times, June 27, 2018; Liptak, “Issues and Implications in Supreme Court’s”; Patrick Wright, “Symposium, Evidence Shows Unions Will Survive Without Agency Fees,” SCOTUSblog, December 22, 2017, scotusblog.com/2017/12/symposium-evidence-shows-unions-will-survive-without-agency-fees/.

The Freedom Foundation, another anti-union: Brief of the National Education Association et al. as Amici Curiae in Support of Respondents at 29–31, Janus v. AFSCME, No. 16-1466 (January 19, 2018).

After Michigan adopted: Michael Watson, “Teachers Unions Report First Effects from Janus Decision,” Capital Research Center, December 5, 2018; Tom Gantert, “32,000 Flee Teachers Union Under Michigan Right-to-Work Law,” Michigan Capitol Confidential, December 14, 2018.

One study of the effect: James Feigenbaum, Alexander Hertel-Fernandez, and Vanessa Williamson, “From the Bargaining Table to the Ballot Box: Political Effects of Right to Work Laws” (working paper, National Bureau of Economic Research, Cambridge, Mass., January 20, 2018); Kevin Drum, “What the Union Fight Is Really About: Defunding the Left,” Mother Jones, March 25, 2011; “Top Organization Contributors” (2016 election cycle), Open Secrets (2017); Sean McElwee, “How the Right’s War on Unions Is Killing the Democratic Party,” Nation, January 22, 2018.

In a tweet the morning: Drum, “What the Union Fight Is Really About”; Sean McElwee, “How the Right’s War on Unions”; Donald Trump (@realDonaldTrump), “Supreme Court rules in favor of non-union workers,” Twitter, June 27, 2018, 10:11 a.m., twitter.com/realdonaldtrump/status/1011975204778729474.

In that same cycle, OpenSecrets.org: Curtlyn Kramer, “Vital Stats: The Widening Gap Between Corporate and Labor PAC Spending,” Brookings Institution, March 31, 2017; “Business-Labor-Ideology Split in PAC & Individual Donations to Candidates, Parties, Super PACs and Outside Spending Groups,” (2018 election cycle), OpenSecrets.org.

The Ed Uihlein Family Foundation: “Sheldon Adelson Lost His First Fight with a Union. Will It Have a Domino Effect?,” Guardian, February 23, 2017; Ryan Erickson and Karla Walter, “Right to Work Would Harm All Americans,” American Prospect, May 18, 2017; “About Us,” AFL-CIO, aflcio.org/about-us; “Top Individual Contributors: All Federal Contributions” (2018 election cycle), Open Secrets (2019); Celine McNicholas, “Janus and Fair Share Fees.”

“Donations can open the door”: Geoff Mulvihill, “Political Money in State-Level Campaigns Exceeds $2B,” Associated Press, November 1, 2018; Sanya Mansoor, Liz Essley Whyte, and Joe Yerardi, “Why Are Corporations Pouring Millions into Shoo-in Governor Races,” USA Today, September 21, 2018.

The large amount: Jody Knauss and Jonas Persson, “Cookie-Cutter ALEC Right-to-Work Bills Pop in Multiple States,” PR Watch, Center for Media and Democracy, March 11, 2015; Nancy Scola, “Exposing ALEC: How Conservative-Backed States Laws Are All Connected,” Atlantic, April 14, 2012.

In 2018, Missouri voters: “Right-to-Work States,” National Conference of State Legislatures, ncsl.org/research/labor-and-employment/right-to-work-laws-and-bills.aspx; Jeff Stein, “Missouri Voters Defeat GOP-Backed ‘Right to Work’ Law, in Victory for Unions, Associated Press Projects,” Washington Post, August 7, 2018.

These declines hurt workers: Laura Malugade, “Union Membership Plummets in Most Right-to-Work States,” Labor Relations Law Insider (blog), January 26, 2018; Jonathan Berlin and Kyle Bentle, “Data: What Wisconsin Says About What Could Happen to Illinois After Janus,” Chicago Tribune, June 29, 2018.

In the United States: David Cooper, “Raising the Minimum Wage to $15 by 2024 Would Lift Wages for 41 Million American Workers,” Economic Policy Institute, April 26, 2017; Lawrence Mishel, Elise Gould, and Josh Bivens, “Wage Stagnation in Nine Charts,” Economic Policy Institute, January 6, 2015; Christopher Ingraham, “The U.S. Has One of the Stingiest Minimum Wage Policies of Any Wealthy Nation,” Washington Post, December 29, 2017; Lawrence Mishel, “Causes of Wage Stagnation,” Economic Policy Institute, January 6, 2015.

The groups behind the letter: Robbie Feinberg, “The Money Against the Minimum Wage,” Open Secrets, April 4, 2014; Dave Jamieson, “Senate Republicans Block Minimum Wage Bill,” Huffington Post, April 30, 2014.

In a Gallup poll shortly: Andrew Dugan, “Most Americans for Raising Minimum Wage,” Gallup, November 11, 2013.

In the end, the minimum-wage bill: “The Case for a Higher Minimum Wage,” editorial, New York Times, February 8, 2014; “Raise the Minimum Wage,” editorial, Los Angeles Times, September 13, 2013; “U.S. Economy Needs a Higher Minimum Wage,” editorial, Salt Lake Tribune, December 11, 2013; Thomas Ferraro, “Senate Republicans Block Bid to Hike Minimum Wage,” Reuters, April 30, 2014; U.S. Conference of Catholic Bishops and Catholic Charities USA to Senators, January 8, 2014, usccb.org/issues-and-action/human-life-and-dignity/labor-employment/upload/joint-minimum-wage-letter-2014-01-08.pdf.

No one thought to blame: Thomas Ferraro, “Senate Republicans Block Obama Bid to Hike Minimum Wage,” Chicago Tribune, April 30, 2014; “Minimum Wage Boost Blocked in Senate,” NBC.com, April 30, 2014.

The report called for stronger: Philip Mattera, “Grand Theft Paycheck: The Large Corporations Shortchanging Their Workers’ Wages,” Good Jobs First, June 2018; Jessica Corbett, “‘Jaw-Dropping’ Report Reveals Rampant Wage Theft Among Top US Corporations,” Common Dreams, June 6, 2018.

The National Employment Law Project: Michael Lax and Rosemary Klein, “More Than Meets the Eye: Social, Economic, and Emotional Impacts of Work-Related Injury and Illness,” New Solutions 18 (2008).

Those funds have created: Jamie Smith Hopkins, “The Campaign to Weaken Worker Protections,” Center for Public Integrity, June 29, 2015.

Taken as a whole: David Neumark and Wendy Stock, “The Effects of Race and Sex Discrimination Laws” (working paper, National Bureau of Economic Research, Cambridge, Mass., April 2001); M. V. Lee Badgett, “The Wage Effects of Sexual Orientation Discrimination,” Industrial and Labor Relations Review 48 (1995): 726; Scott J. Adams, “Age Discrimination Legislation and the Employment of Older Workers,” Labour Economics 11 (2004): 219; Stewart Schwab, “Employment Discrimination,” in Encyclopedia of Law and Economics, ed. Boudewijn Bouckaert and Gerrit De Geest (Cheltenham, England: Edward Elgar, 2000).

In some cases, ProPublica found: Victoria Lipnic, “The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act,” U.S. Equal Employment Opportunity Commission, June 2018; “Age Discrimination in Employment Act (Charges Filed with EEOC) FY 1997–FY 2018,” U.S. Equal Employment Opportunity Commission, eeoc.gov/eeoc/statistics/enforcement/adea.cfm; Peter Gosselin and Ariana Tobin, “Cutting ‘Old Heads’ at IBM,” ProPublica, March 22, 2018.

A lawyer with the AARP: Robert Weiner and Daniel Khan, “Iowa Case Shows Age Discrimination Persists, Despite Law,” Des Moines Register, May 11, 2016; Michael Winerip, “Three Men, Three Ages. Which Do You Like?,” New York Times, July 22, 2013; Noguchi, “Age Discrimination Suits Jump, but Wins Are Elusive.”

They also are often left unemployed: Bob Sullivan, “For Older Workers, Getting a New Job Can Be a Gamble,” CNBC, July 10, 2016.

In addition to the immediate loss of income: Missed by the Recovery: Solving the Long-Term Unemployment Crisis for Older Workers: Hearing Before the U.S. Senate Special Committee on Aging, 112 Cong. (May 15, 2012) (statement of Charles Jeszeck, U.S. Government Accountability Office); Ann Brenoff, “Older Workers Stay Unemployed Much Longer Than Younger Ones, Study Says,” Huffington Post, December 6, 2017.

Now, many of these cases: Bryce Covert, “Exclusive: 43 Sexual Harassment Cases That Were Thrown Out Because of One Supreme Court Decision,” ThinkProgress, November 24, 2014.

Other forms of harassment: Amy Blackstone, Heather McLaughlin, and Christopher Uggen, “Workplace Sexual Harassment,” Stanford Center on Poverty and Inequality (2018).

There is already evidence: Sarah Kellogg, “Wal-Mart v. Dukes,” Washington Lawyer, September 2011; Nina Martin, “The Impact and Echoes of the Wal-Mart Discrimination Case,” ProPublica, September 27, 2013.

Workers fired late: Judith D. Fischer, “Public Policy and the Tyranny of the Bottom Line in the Termination of Older Workers,” South Carolina Law Review 53 (2002): 227; Elena Andreeva, “Depressive Symptoms as a Cause and Effect of Job Loss in Men and Women,” BMC Public Health 15 (2015); “Health Impact Assessments of the Layoff and Bumping Process,” Cincinnati Health Department Health Impact Assessment Committee (October 2011), 5; Sidra Goldman-Mellor et al., “Economic Contraction and Mental Health,” International Journal of Mental Health 39 (Summer 2010): 6; Yin Paradies et al., “Racism as a Determinant of Health: A Systematic Review and Meta-Analysis,” PLOS One, September 23, 2015; Jason Silverstein, “How Racism Is Bad for Our Bodies,” Atlantic, March 12, 2013; Tene Lewis, “Chronic Exposure to Everyday Discrimination and Coronary Artery Calcification in African-American Women: The SWAN Heart Study,” Psychosomatic Medicine 68 (2006): 362.

As a result of these new incentives: Adaku Onyeka-Crawford, “Vance v. BSU Anniversary: A Case of the Terrible Twos,” National Women’s Law Center, June 24, 2015.

Barry Hirsch, a Georgia State University economist: Barry Hirsh, “Reconsidering Union Wage Effects: Surveying New Evidence on an Old Topic,” Journal of Labor Research 25 (2004): 233, 260; Matthew Walters and Lawrence Mishel, “How Unions Help All Workers,” Economic Policy Institute, August 26, 2003; Susan Dynarski, “Fresh Proof That Strong Unions Help Reduce Income Inequality,” New York Times, July 6, 2018.

When benefits are taken: Walters and Mishel, “How Unions Help All Workers.”

As unions lost members: Bruce Western and Jake Rosenfeld, “Unions, Norms, and the Rise of U.S. Wage Inequality,” American Sociological Review 76 (2011): 513.

The Economic Policy Institute: Elise Gould and Will Kimball, “‘Right-to-Work’ States Still Have Lower Wages,” Economic Policy Institute, April 22, 2015; Lisa Nagele-Piazza, “The Resurgence of Right-to-Work Laws,” Society for Human Resource Management, July 21, 2017; “Right-to-Work States,” National Conference of State Legislatures.

In twenty-nine states: David Cooper et al. “We Can Afford a $12.00 Federal Minimum Wage in 2020,” Economic Policy Institute, April 30, 2015; “The Pennsylvania Minimum Wage 2018,” Keystone Research Center, January 2, 2018; “State Minimum Wages 2019, Minimum Wage by State,” National Conference of State Legislatures, January 7, 2019.

It found that a $1: Arindrajit Dube, “Minimum Wages and the Distribution of Family Incomes” (discussion paper, IZA Institute of Labor Economics, Bonn, Germany, February 2017); Alex Gertner et al., “Association Between State Minimum Wages and Suicide Rates in the U.S.,” American Journal of Preventive Medicine 56 (2019): 658; Robert Hahn, “Poverty and Death in the United States,” International Journal of Health Services 26 (1996).

The report noted that: David Cooper and Teresa Kroeger, “Employers Steal Billions from Workers’ Paychecks Each Year,” Economic Policy Institute, May 10, 2017.

“Many respondents reported”: Deborah Berkowitz, “Workplace Safety Enforcement Continues to Decline in Trump Administration,” National Employment Law Project, March 14, 2019; Lax and Klein, “More Than Meets the Eye.”

Chapter Seven: Corporations

The resulting oil spill: Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008); Alan Taylor, “The Exxon Valdez Oil Spill: 25 Years Ago Today,” Atlantic, March 24, 2014; Jeff Kerr, “Exxon Shipping Co v. Baker: The Perils of Judicial Punitive Damages Reform,” Emory Law Journal 59 (2010): 731.

It was not clear why: Exxon Shipping Co., 554 U.S. 471; Taylor, “Exxon Valdez Oil Spill”; Kerr, “Exxon Shipping Co v. Baker,” 731.

The jury awarded compensatory damages: Exxon Shipping Co., 554 U.S. 471; Keith Schneider, “Jury Finds Exxon Acted Recklessly in Valdez Oil Spill,” New York Times, June 14, 1994; Keith Schneider, “Exxon Is Ordered to Pay $5 Billion for Alaska Spill,” New York Times, September 17, 1994.

Even after that: Schneider, “Exxon Is Ordered to Pay $5 Billion for Alaska Spill”; Exxon Shipping Co. v. Baker, 554 U.S. 471.

In an 1851 dispute: Emily Gottlieb, “What You Need to Know About . . . Punitive Damages,” Center for Justice & Democracy, September 2011; Day v. Woodworth, 54 U.S. 363 (1851).

Nor did the history: Robert Riggs, “Constitutionalizing Punitive Damages: The Limits of Due Process,” Ohio State Law Journal 52 (1991): 859.

They wanted Congress: F. Patrick Hubbard, “The Nature and Impact of the ‘Tort Reform’ Movement,” Hofstra Law Review 35 (2006): 437, 469–70.

Tort reformers put up billboards: Hubbard, “Nature and Impact of the ‘Tort Reform’ Movement,” 437, 469–73; Gerald Shargel, “‘Hot Coffee’ Documentary Skewers Tort Reformers: A New Documentary Calls the McDonald’s ‘Hot Coffee’ Lawsuit Frivolous,” Daily Beast, June 24, 2011; Ralph Nader, “Suing for Justice,” Harper’s, April 2016.

The truth was: Caroline Forell, “McTorts: The Social and Legal Impact of McDonald’s Role in Tort Suits,” Loyola Consumer Law Review 24 (2011): 105, 134–35.

Tort reformers also made: Nader, “Suing for Justice”; Stephen Burbank and Sean Farhang, “Litigation Reform: An Institutional Approach,” University of Pennsylvania Law Review 162 (2014): 1544, 1545; “Fact Sheet: Caps on Compensatory Damages: A State Law Summary,” Center for Justice and Democracy at New York Law School, centerjd.org/content/fact-sheet-caps-compensatory-damages-state-law-summary.

It was a case: Myriam Gilles, “The Day Doctrine Died,” University of Illinois Law Review 2016, no. 2 (2016): 111, 119; David Schwartz, “Do-It-Yourself Tort Reform: How the Supreme Court Quietly Killed the Class Action,” SCOTUSblog, September 16, 2011; Edward A. Purcell Jr., “The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform,” University of Pennsylvania Law Review 156, no. 6 (June 2008): 1823.

BMW had a policy: BMW of North America, Inc. v. Gore, 517 U.S. 559, 563–64 (1996).

BMW thought the award: BMW, 517 U.S. at 564–67.

The Court ruled: BMW, 517 U.S. 559.

Campbell ended up: State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003).

State Farm took the case: State Farm, 538 U.S. 408.

In this case: State Farm, 538 U.S. 408.

A jury might well: State Farm, 538 U.S. 408.

It found that Philip Morris’s: Philip Morris USA v. Williams, 549 U.S. 346 (2007); Kristin Younger and Sara Rosenbaum, “Philip Morris USA v. Williams: Implications for Public Health Policy and Practice,” Public Health Reports 122, no. 5 (September–October 2007), 702–4.

He worried that Philip Morris: Robert Barnes, “Supreme Court Ends Philip Morris’s Challenge of Punitive Award,” Washington Post, April 1, 2009.

It was properly considering: Philip Morris, 549 U.S. 346.

A case note: “The Supreme Court—Leading Cases: Punitive Damages,” Harvard Law Review 121 (2007): 278.

Although the Court: Exxon Shipping, 554 U.S. 471; Jeffrey Fisher, “The Exxon Valdez Case and Regularizing Punishment,” Alaska Law Review 26 (2009): 1, 15, 18.

Therefore, he said: Exxon Shipping, 554 U.S. 471.

She also worried: Exxon Shipping, 554 U.S. 471.

The Court’s decisions made it: “Fortune 500, 2003,” Fortune, archive.fortune.com/magazines/fortune/fortune500_archive/full/2003/.

The Court did not explain: State Farm, 538 U.S. 408.

Poor people never were: Martha McCluskey, “Constitutionalizing Inequality: Due Process in State Farm,” Buffalo Law Review 56 (2008): 1036, 1055; State Farm, 538 U.S. at 417, 426 (quoting Honda Motor Co. v. Oberg, 512 U.S. 415, 432 [1994]).

A month later: BMW, 517 U.S. 559.

That same year: Erwin Chemerinsky, “The Roberts Court at Age Three,” Wayne Law Review 54 (2008): 22; Jeffrey Rosen, “Supreme Court Inc.,” New York Times, March 16, 2008; Adam Liptak, “Pro-Business Rulings Are Defining This Supreme Court,” New York Times, May 4, 2013.

The study, which was published: J. Mitchell Pickering, “Something Old, Something New—Something Borrowed, Something Blue,” Santa Clara Law Review 49 (2009): 1063, 1072, 1098.

Agreeing with the Santa Clara study: Lee Epstein, William Landes, and Richard Posner, “How Business Fares in the Supreme Court,” Minnesota Law Review 97 (2013): 1450, 1471.

It was such a priority: Public Citizen, “The Chamber of Litigation,” October 26, 2016, 7–8, chamberofcommercewatch.org/wp-content/uploads/2016/10/Chamber-litigation-report-part-1.pdf.

The drafters of the federal class action: Jed S. Rakoff, “The Cure for Corporate Wrongdoing: Class Actions vs. Individual Prosecutions,” New York Review of Books, November 19, 2015; Owen Fiss, “The Political Theory of the Class Action,” Washington and Lee Law Review 53 (1996): 21, 25; Robert Klonoff, “The Decline of Class Actions,” Washington University Law Review 90 (2013): 729, 731, 736; Caroline Bressman, “The Future of Class Actions,” Minnesota Law Review, March 30, 2017; Linda Mullenix, “Rethinking the American Class Action,” Emory Law Journal 64 (2014): 399.

The changes would, he said: Benjamin Kaplan, “A Prefatory Note,” Boston College Law Review 10 (1969): 497; David Marcus, “The History of the Modern Class Action, Part I: Sturm und Drang, 1953–1980,” Washington University Law Review 3 (2013): 587, 600n52.

Rodriguez v. San Antonio: Margo Schlanger, “Beyond the Hero Judge: Institutional Reform Litigation as Litigation,” Michigan Law Review 97 (1999): 1994, 2003–4; David Marcus, “The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981–1994,” Fordham Law Review 86 (2018): 1785, 1807.

They reached $6.1 billion: Ralph Blumenthal, “Veterans Accept $180 Million Pact on Agent Orange,” New York Times, May 8, 1984; Harvey Berman, “The Agent Orange Veteran Payment Program,” Law and Contemporary Problems 53 (1990): 49; Katrina Frayter, “Enron Investors to Split Billions from Lawsuit,” CNN, September 9, 2008; “Judge Approves $3.56 Billion Settlement for WorldCom Investors,” Bloomberg, September 22, 2005.

Fitzpatrick concluded that: Daniel Fisher, “Study Shows Consumer Class-Action Lawyers Earn Millions, Clients Little,” Forbes, December 11, 2013; Brian Fitzpatrick, “Do Class Action Lawyers Make Too Little?,” University of Pennsylvania Law Review 158 (2010): 2043–46.

Tort reform advocates: Marcus, “Modern Class Action, Part II,” 1812–13, 1828.

Ed Markey, who was then: Klonoff, “Decline of Class Actions,” 729, 732–33; “Bush Signs Limits on Class Actions,” Associated Press, February 18, 2005.

Erwin Chemerinsky, dean of the University: Suzette Malveaux, “How Goliath Won: The Future Implications of Dukes v. Wal-Mart,” Northwestern University Law Review Colloquy 106 (2011): 52; Catherine L. Fisk and Erwin Chemerinsky, “The Failing Faith in Class Actions: Dukes v. Wal-Mart and AT&T Mobility v. Concepcion,” Duke Journal of Constitutional Law & Public Policy 7, Special Issue (2011): 79–80, dx.doi.org/10.2139/ssrn.1966624.

Its new standards: Nina Martin, “The Impact and Echoes of the Wal-Mart Discrimination Case,” ProPublica, September 27, 2013; Michael Selmi and Sylvia Tsakos, “Employment Discrimination Class Actions After Wal-Mart v. Dukes,” Akron Law Review 48 (2015): 803, 804, 804n5.

Behrend and several other: Comcast Corp. v. Behrend, 569 U.S. 27 (2013).

The liberal dissenters: Comcast, 569 U.S. 27.

In “The End of Class Actions?”: Fisk and Chemerinsky, “Failing Faith in Class Actions,” 73; Malveaux, “How Goliath Won,” 52; Klonoff, “Decline of Class Actions,” 729; Wataru Aikawa, “A Bleak Future for Class Actions,” Regulatory Review, May 7, 2015; Brian Fitzpatrick, “The End of Class Actions?,” Arizona Law Review 57 (2015): 162, 199.

The Court has been a strong supporter: Elizabeth Colman, “How America’s Wealthiest, Most Powerful Companies Use Fine Print to Subvert Employee Rights,” Employee Rights Advocacy Institute for Law & Policy, June 2018.

Before long, a movement: Michael Moffitt, “Before the Big Bang: The Making of an ADR Pioneer,” Negotiation Journal, October 2006, 437–39.

In his 1976 speech: Moffitt, “Before the Big Bang,” 437–39; Deborah Hensler, “Our Courts Ourselves: How Alternative Dispute Resolution Movement Is Re-shaping Our Legal System,” Pennsylvania State Law Review 108 (2003): 165, 174.

Much of the arbitration: Hensler, “Our Courts, Ourselves,” 176–177.

As one arbitration firm: Hensler, “Our Courts, Ourselves,” 184; Kerri Anne Renzulli, “Workers at Google, Facebook, eBay and Airbnb Can Now Sue over Sexual Harassment—Here’s What That Means for Employees,” CNBC, November 19, 2018; Jessica Silver-Greenberg and Michael Corkery, “In Arbitration, a ‘Privatization of the Justice System,’” New York Times, November 1, 2015; “Arbitration,” National Association of Consumer Advocates, consumeradvocates.org/for-consumers/arbitration.

She resigned, and publicly: The Arbitration Trap: How Credit Card Companies Ensnare Consumers (Washington, D.C.: Public Citizen, September 2007), 2, 17, citizen.org/article/the-arbitration-trap-how-credit-card-companies-ensnare-consumers-2/30.

The prediction proved: Eric Berkowitz, “Is Justice Served?,” Los Angeles Times, October 22, 2006.

A California appellate justice: “Judicial Salary Tracker,” National Center for State Courts, ncsc.org/microsites/judicial-salaries-data-tool/home/Explore-the-Data.aspx; Arbitration Trap, 31; Berkowitz, “Is Justice Served?”; National Center for State Courts, “Judicial Salary Tracker.”

It reported, under the bullet point: Arbitration Trap, 2, 17, 30; Berkowitz, “Is Justice Served?”

Public Citizen concluded: Laurence Tribe, Uncertain Justice: The Roberts Court and the Constitution (New York: Macmillan, 2014), 295; Arbitration Trap, 3, 7.

In 1983, Brennan: Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983); Gilles, “The Day Doctrine Died,” 124; Martin Malin, “The Three Phases of the Supreme Court’s Arbitration Jurisprudence: Empowering the Already-Empowered,” Nevada Law Journal 17 (2016): 23, 39–40.

Gilmer wanted to bring: Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

“Unfortunately, the Supreme Court”: Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018); David Savage, “How the Supreme Court Is Invoking a 1925 Law to Restrict Workers’ Rights Today,” Los Angeles Times, May 23, 2018; Matthew Finkin, “‘Workers’ Contracts’ Under the United States Arbitration Act: An Essay in Historical Clarification,” Berkeley Journal of Employment and Labor Law 17 (1996): 282.

She did not believe: Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000); Katherine Stone, “Will Workers and Consumers Get Their Day in Court?,” American Prospect, May 5, 2016.

The Court did not seem to care: Green Tree Financial, 531 U.S. 79 (2000).

It was around this time: Green Tree Financial, 531 U.S. 79; Stone, “Will Workers and Consumers Get Their Day”; Gilles, “The Day Doctrine Died,” 124.

The Concepcions filed: AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011); Peter Rutledge and Christopher Drahozal, “‘Sticky’ Arbitration Clauses? The Use of Arbitration Clauses After Concepcion and Amex,” Vanderbilt Law Review 67 (2014): 955, 957–58, 957n4; Adam Liptak, “Supreme Court Allows Contracts That Prohibit Class-Action Arbitration,” New York Times, April 27, 2011.

It would not be worth: AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011).

The San Francisco–based U.S. Court: AT&T Mobility, 563 U.S. 333; Myriam Gilles and Gary Friedman, “After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion,” University of Chicago Law Review 79 (2012): 623, 637.

As a result, Scalia said: AT&T Mobility, 563 U.S. 333; Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 175.

“What rational lawyer”: AT&T Mobility, 563 U.S. 333.

The Court’s ruling, one class action expert said: Liptak, “Supreme Court Allows Contracts.”

To prove its case: American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013).

The Federal Arbitration Act: American Express, 570 U.S. 228.

Kagan provided what: American Express, 570 U.S. 228; Sheldon Whitehouse, “Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts,” Harvard Law & Policy Review 9 (2015): 195, 199.

As Lewis pointed out: Epic Systems, 138 S. Ct. 1612 (2018); Brief for the Respondent at 3–4, Epic Systems, 138 S. Ct. 1612 (2018).

That included, he said: Epic Systems, 138 S. Ct. 1612 (2018).

The Court’s conservatives: Epic Systems, No. 16-285 (U.S. May 21, 2018).

The permit that Coeur Alaska: Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261 (2009).

“If a mining company”: Coeur Alaska, 557 U.S. 261; “Supreme Court Clears Way for Mining Company to Destroy Alaskan Lake,” Earthjustice, June 22, 2009, earthjustice.org/news/press/2009/supreme-court-clears-way-for-mining-company-to-destroy-alaskan-lake; People for the American Way Foundation, “Rise of the Corporate Court: How the Supreme Court Is Putting Businesses First,” September 2010, pfaw.org/report/rise-of-the-corporate-court-how-the-supreme-court-is-putting-businesses-first/.

In a 2004 decision: “Key Judge Warns of Political Danger of Monopoly, Calls for Revival of Antitrust Tools,” Monopoly Matters (blog), Open Markets Institute, May 3, 2019; Verizon Communications, Inc. v. Trinko, 540 U.S. 398 (2004); United States v. Terminal Railroad Association of St. Louis, 224 U.S. 383 (1912).

Wood, who taught: “Key Judge Warns of Political Danger,” Monopoly Matters.

It is unlikely: Hearings on Competition and Consumer Protection in the 21st Century, Before the Federal Trade Commission, November 15, 2018 (Comments of the Electronic Frontier Foundation).

After the Court: John Y. Gotanda, “Punitive Damages: A Comparative Analysis” (Working Paper Series 8, Villanova University Charles Widger School of Law, August 2003), digitalcommons.law.villanova.edu/wps/art8/.

The problem of regulatory capture: Lawrence Tribe and Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution (New York: Macmillan, 2014), 293; Emily Stewart, “Mick Mulvaney Once Called the CFPB a ‘Sick, Sad’ Joke. Now He Might Be in Charge of It,” Vox, November 16, 2017.

Public Citizen said that: Public Citizen and National Association of Consumer Advocates, “Report: In Wake of Supreme Court’s AT&T v. Concepcion Decision, Consumers Are Worse Off,” April 25, 2012, citizen.org/news/report-in-wake-of-supreme-courts-att-v-concepcion-decision-consumers-are-worse-off/; Public Citizen, “Cases That Would Have Been: Three Years After AT&T Mobility v. Concepcion, Claims of Corporate Wrongdoing Continue to Pile Up,” May 2014.

The author of the report: Seyfarth Shaw LLP, “Seyfarth Shaw’s Jerry Maatman Presents on 2018 Class Action Trend,” Workplace Class Action Blog, February 13, 2019.

“The ability to access”: Imre Stephen Szalai, “The Prevalence of Consumer Arbitration Agreements by America’s Top Companies,” UC Davis Law Review 52 (2019): 233–35; Silver-Greenberg and Gebeloff, “Arbitration Everywhere.”

After Epic Systems: Adam Liptak, “Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions,” New York Times, May 21, 2018.

The new policy: Szalai, “Prevalence of Consumer Arbitration Agreements,” 234–35; “Fact Sheet: Cases Tossed Out of Court,” Center for Justice and Democracy at New York Law School; Emily Flitter, “JPMorgan Chase Seeks to Prohibit Card Customers from Suing,” New York Times, June 4, 2019; Cale Guthrie Weissman, “Chase Bank Is Quietly Adding a Forced Arbitration Clause to Some Credit Cards,” Fast Company, May 30, 2019; Silver-Greenberg and Gebeloff, “Arbitration Everywhere.”

“For employers looking”: Stephanie Russell-Kraft, “The Supreme Court’s War Against Workers,” New Republic, May 21, 2018; Adam Liptak, “Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions,” New York Times, May 21, 2018; Szalai, “Prevalence of Consumer Arbitration Agreements,” 234–35; “Fact Sheet: Cases Tossed Out of Court,” Center for Justice and Democracy at New York Law School; Michael E. Brewer, Michael Leggieri, and Robin Samuel, “You Had Me at ‘Class Action Waiver,’” Employer Report, Baker McKenzie, November 29, 2018, theemployerreport.com/2018/11/you-had-me-at-class-action-waiver/.

Although these cases: David Weinberg, “Supreme Court Strongly Pro-Business in Roberts Years,” Marketplace, Minnesota Public Radio, June 24, 2013.

The Court’s anti-environmental rulings: John Tozzi, “Pollution’s Annual Price Tag? $4.6 Trillion and 9 Million Dead,” Bloomberg, October 19, 2017; David Cooper and Teresa Kroeger, “Employers Steal Billions from Workers’ Paychecks Each Year,” Economic Policy Institute, May 10, 2017; Seyfarth Shaw LLP, “Seyfarth Shaw’s Jerry Maatman Presents.”

Chapter Eight: Criminal Justice

King was tried: Maryland v. King, 569 U.S. 435 (2013).

The Court of Appeals of Maryland: King, 569 U.S. 435; U.S. Department of Justice, “Fingerprinting—Search and Seizure,” Justice Manual, § 251, justice.gov/jm/criminal-resource-manual-251-fingerprinting-search-and-seizure.

At oral argument: Barry Friedman, “The Supreme Court Fails the Fourth Amendment Test,” Slate, June 5, 2013; King, 569 U.S. 435; Erin Murphy, “License, Registration, Cheek Swab: DNA Testing and the Divided Court,” Harvard Law Review 127 (2013): 161; Stephen Mercer and Jessica Gabel, “Shadow Dwellers: The Unregulated World of State and Local DNA Databases,” NYU Annual Survey of American Law 69 (2014): 639, 649.

A DNA database: Brief of Amici Curiae Electronic Privacy Information Center and Twenty-Six Technical Experts and Legal Scholars in Support of Respondent, Maryland v. King, 569 U.S. 435 (2013) (No. 12-207).

The Electronic Privacy Information Center: Brief of Amici Curiae Electronic Privacy Information Center.

Federal law allowed DNA: Brief of Amici Curiae of American Civil Liberties Union, ACLU of Maryland, and ACLU of Northern California in Support of Respondent, Maryland v. King, 569 U.S. 435 (2013) (No. 12-207); “DNA Sample Collection from Arrestees,” National Institute of Justice, nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx.

Even though the law: Brief for the Howard University School of Law Civil Rights Clinic as Amicus Curiae in Support of Respondent, Maryland v. King, 569 U.S. 435 (2013) (No. 12-207).

Scalia dissented, along with: King, 569 U.S. 435.

He also emphasized: King, 569 U.S. 435.

The government is prohibited: King, 569 U.S. 435; “ACLU Comment on Supreme Court DNA Swab Ruling (Maryland v. King),” ACLU, June 3, 2013, aclu.org/press-releases/aclu-comment-supreme-court-dna-swab-ruling-maryland-v-king; Andrea Roth, “Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement,” Ohio State Journal of Criminal Law 11 (2013): 295, 299.

Scalia suggested that: King, 569 U.S. 435.

Senator Ted Cruz: Hannah Jeffrey, “Ted Cruz, Randy Weber Condemn Supreme Court DNA Ruling,” Houston Chronicle, June 4, 2013; Norman Reimer, “The Scalia Dissent in Maryland v. King: Exposing a Contrived Rationale Today and a Dangerous Precedent for Tomorrow,” Engage 14, no. 3 (October 2013).

If the police obtained: Corinna Barrett Lain, “Countermajoritarian Hero or Zero? Rethinking the Warren Court’s Role in the Criminal Procedure Revolution,” University of Pennsylvania Law Review 152 (2004): 1370–71, 1373, 1379.

The state never produced: Mapp v. Ohio, 367 U.S. 643 (1961); William Yardley, “Dollree Mapp, Who Defied Police Search in Landmark Case, Is Dead,” New York Times, December 9, 2014; Lain, “Countermajoritarian Hero,” 1375.

At the time of Mapp’s arrest: Lain, “Countermajoritarian Hero,” 1373; “High Court Bars Evidence States Seize Illegally,” New York Times, June 20, 1961; Weeks v. United States, 232 U.S. 383 (1914); Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge, Mass.: Belknap Press, 2000), 195.

The New York Times, in a front-page story: Lain, “Countermajoritarian Hero,” 1373; “High Court Bars Evidence,” New York Times; Weeks, 232 U.S. 383; Powe, The Warren Court, 195.

The result was a Court: “Justices 1789 to Present,” Supreme Court of the United States, supremecourt.gov/about/members_text.aspx.

“If you examine the criminal law decisions”: Lain, “Countermajoritarian Hero,” 1379, 1383–84, 1386–87, 1398; Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” Virginia Law Review 82, no. 1 (February 1996): 1, 65; Morton Horwitz, “The Warren Court and the Pursuit of Justice,” Washington and Lee Law Review 50 (1993): 5, 9.

The Warren Court was: Powe, The Warren Court, 199; Horwitz, “Warren Court and the Pursuit of Justice,” 1, 9.

In 1966, the Court issued a second: Miranda v. Arizona, 384 U.S. 436 (1966).

After Miranda was questioned: Bernard Schwartz, “Chief Justice Earl Warren: Super Chief in Action,” Tulsa Law Journal 33 (1977): 477, 493, 495 (1997).

The Court’s rules: Miranda v. Arizona, 384 U.S. 436 (1966); Michael Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2016), 74–75; Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 136; Powe, The Warren Court, 394–95.

“I guess now”: Lain, “Countermajoritarian Hero,” 1361, 1421, 1421n307; David Courtwright, No Right Turn: Conservative Politics in a Liberal America (Cambridge, Mass.: Harvard University Press, 2010), 53; Alden Whitman, “Earl Warren, 83, Who Led High Court in Time of Vast Social Change, Is Dead,” New York Times, July 10, 1974.

With Nixon’s quick nomination: Yale Kamisar, “The Warren Court and Criminal Justice: A Quarter-Century Retrospective,” Tulsa Law Journal 31 (1995): 1, 3; “Justices 1789 to Present,” Supreme Court; Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 329; Robert B. Semple Jr., “Warren E. Burger Named Chief Justice by Nixon; Now on Appeals Bench,” New York Times, May 22, 1969.

It was less than two years: Harris v. New York, 401 U.S. 222 (1971); Graetz and Greenhouse, Burger Court, 45, 369.

Marshall, in dissent: Oregon v. Mathiason, 429 U.S. 492 (1977); California v. Beheler, 463 U.S. 1121 (1983); John C. Jeffries, Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994), 399; Graetz and Greenhouse, Burger Court, 45, 369.

The holding that the police: New York v. Quarles, 467 U.S. 649 (1984).

“A majority of the Court”: Dickerson v. United States, 530 U.S. 428 (2000); Graetz and Greenhouse, Burger Court, 45, 369; Chemerinsky, Case Against the Supreme Court, 137.

In dissent, Brennan: Schneckloth v. Bustamonte, 412 U.S. 218, 277 (1973).

White, writing for the majority: United States v. Leon, 486 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984).

“It now appears”: Leon, 486 U.S. 897; Sheppard, 468 U.S. 981; Graetz and Greenhouse, Burger Court, 49.

Bostick consented, and the police: Florida v. Bostick, 501 U.S. 429 (1991); David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: New Press, 1999), 16.

He warned that: Bostick, 501 U.S. 429.

Searches of the kind: Bostick, 501 U.S. 429.

Terry was, however: John G. Miles Jr., “Decline of the Fourth Amendment: Time to Overrule Mapp v. Ohio,” Catholic University Law Review 27 (1978): 9, 16; David Rudovsky and David Harris, “Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data,” Ohio State Law Journal 79 (2018): 1, 3.

The ruling greatly increased: Rudovsky and Harris, “Terry Stops-and-Frisks,” 6–8.

Few law enforcement tactics: Al Baker and Colin Moynihan, “Paterson Signs Bill Limiting Stop-and-Frisk Data,” New York Times, July 16, 2010; “Policing the Police on Stop-and-Frisk,” editorial, New York Times, June 23, 2016.

The Court accepted Gideon’s case: Stephen Bright and Sia Sanneh, “Fifty Years of Defiance and Resistance After Gideon v. Wainwright,” Yale Law Journal 122 (2013): 2106; Anthony Lewis, “The Silencing of Gideon’s Trumpet,” New York Times, April 20, 2003.

The same day, in Douglas v. California: Gideon v. Wainwright, 372 U.S. 335; Douglas v. California, 372 U.S. 353 (1963).

Anthony Lewis, a New York Times journalist: Bright and Sanneh, “Fifty Years of Defiance and Resistance,” 2106; Richard Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1993), 55–56; Powe, The Warren Court, 379; IMDb, s.v. “Gideon’s Trumpet,” imdb.com/title/tt0080789/.

The ruling was clearly at odds: Kirby v. Illinois, 406 U.S. 682 (1972); United States v. Ash, 413 U.S. 300 (1973).

In dissent, Douglas: Ross v. Moffitt, 417 U.S. 600, 616 (1974).

He also testified: Washington v. Strickland, 693 F.2d 1243.

Even if it had not been: Strickland v. Washington, 466 U.S. at 700.

He insisted that there was no way: Graetz and Greenhouse, Burger Court, 52–53; Strickland, 466 U.S. at 694, 710.

It led one exasperated legal commentator: Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011); “Recent Cases, Muniz v. Smith,” Harvard Law Review 125 (2012): 1498, 1505, 1505n73; Kimberly Sachs, “You Snooze, You Lose, and Your Client Gets a Retrial: United States v. Ragin and Ineffective Assistance of Counsel in Sleeping Lawyer Cases,” Villanova Law Review 62 (2017): 427, 429, 429n11.

Although the lawyer failed: Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230 (11th Cir. 2012); Holsey v. Humphrey, 133 S. Ct. 2804 (2013); Erik Eckholm, “After Delay, Inmate Is Executed in Georgia,” New York Times, December 9, 2014.

The New York State appellate court: Ken Armstrong, “What Can You Do with a Drunken Lawyer?,” Marshall Project, December 10, 2014.

Many jurisdictions had extremely: American Bar Association, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Chicago: American Bar Association Standing Committee on Legal Aid and Indigent Defendants, 2005), iv, 41, 46; Stephanos Bibas, “Shrinking Gideon and Expanding Alternatives to Lawyers,” Washington and Lee Law Review 70 (2013): 1287, 1288; Thomas Giovanni and Roopal Patel, “Gideon at 50: Three Reforms to Revive the Right to Counsel” (New York: Brennan Center for Justice, 2013).

“The court reporter”: Sixth Amendment Center, The Right to Counsel in Mississippi: Evaluation of Adult Felony Trial Level Indigent Defense Services (Boston: Sixth Amendment Center, 2018); Cole, No Equal Justice, 112–13.

As one critic said: Sixth Amendment Center, Right to Counsel; Cole, No Equal Justice, 84–85; Chemerinsky, Case Against the Supreme Court, 149–50 (quoting Douglas Vick, “Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences,” 43 [1995]: 329, 398); Sara Mayeux, “What Gideon Did,” Columbia Law Review 116 (2016): 15, 86, 86n352.

“Pack mules can carry a lot”: American Bar Association, Gideon’s Broken Promise, 17–18; Oliver Laugland, “The Human Toll of America’s Public Defender Crisis,” Guardian, September 7, 2016.

The report cited a survey: American Bar Association, Gideon’s Broken Promise, 19.

It does not, however: Giovanni and Patel, “Gideon at 50,” 6; Missouri v. Frye, 566 U.S. 134 (2012); Emily Yoffe, “Innocence Is Irrelevant,” Atlantic, September 2017; Jed S. Rakoff, “Why Innocent People Plead Guilty,” New York Review of Books, November 20, 2014.

The report had a name: American Bar Association, Gideon’s Broken Promise, 19

The Cincinnati-based U.S. Court of Appeals: Bordenkircher v. Hayes, 434 U.S. 357, 359–60 (1978).

He went on to praise: Graetz and Greenhouse, Burger Court, 57–58; Bordenkircher, 434 U.S. at 364.

That is “a tremendous amount”: Bordenkircher, 434 U.S. at 368; John Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (New York: Basic Books, 2017), 131–32.

In his Bordenkircher dissent: Yoffe, “Innocence Is Irrelevant”; Bordenkircher, 434 U.S. at 368.

Defendants move through the system: “Inside NOLA Public Defenders’ Decision to Refuse Felony Cases,” 60 Minutes, CBS, available at cbsnews.com/news/inside-new-orleans-public-defenders-decision-to-refuse-felony-cases/; Emily Lane, “Orleans Public Defenders on ‘60 Minutes’: Innocent Imprisoned Because We’re Overworked,” New Orleans Times-Picayune, April 16, 2017; American Bar Association, The Louisiana Project: A Study of the Louisiana Defender System and Attorney Workload Standards (New York: Postlethwaite & Netterville and the American Bar Association Standing Committee on Legal Aid and Indigent Defendants, 2017); Debbie Elliott, “Public Defenders Hard to Come By in Louisiana,” All Things Considered, NPR, March 10, 2017.

As it was, Gamble: “Inside NOLA Public Defenders’ Decision”; Lane, “Orleans Public Defenders on ‘60 Minutes.’”

The National Registry of Exonerations: Rakoff, “Why Innocent People Plead Guilty”; Innocence Project, “DNA Exonerations in the United States,” available at innocenceproject.org/dna-exonerations-in-the-united-states/; “% Exonerations by Contributing Factor,” National Registry of Exonerations,” law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx.

“If his lawyer”: Rakoff, “Why Innocent People Plead Guilty.”

In 1984, 1986, and 1994: Tanya Golash-Boza, “America’s Mass Incarceration Problem in 5 Charts—Or Why Sessions Shouldn’t Bring Back Mandatory Minimums,” The Conversation, May 29, 2017, theconversation.com/americas-mass-incarceration-problem-in-5-charts-or-why-sessions-shouldnt-bring-back-mandatory-minimums-78019; Inimai Chettiar and Lauren-Brooke Eisen, “The Complex History of the Controversial 1994 Crime Bill” (New York: Brennan Center for Justice, April 14, 2016); Office of the President, “Economic Perspectives on Incarceration and the Criminal Justice System” (April 2016), 18–19; Mirko Bagaric, Sandeep Gopalan, and Marissa Florio, “A Principled Strategy for Addressing the Incarceration Crisis: Redefining Excessive Imprisonment as a Human Rights Abuse,” Cardozo Law Review 38 (2017): 1663, 1680–81; Pfaff, Locked In, 54; American Bar Association Justice Kennedy Commission, Reports with Recommendations to the ABA House of Delegates (August 2004), iii; “Mandatory Minimum Sentences Decline, Sentencing Commission Says,” United States Courts, July 25, 2017, uscourts.gov/news/2017/07/25/mandatory-minimum-sentences-decline-sentencing-commission-says.

In 2002, one of those inmates: Jed Rakoff, “Mass Incarceration: The Silence of the Judges,” New York Review of Books, May 21, 2015; Office of the President, “Economic Perspectives on Incarceration”; Michael Mueller-Smith, “The Criminal and Labor Market Impacts of Incarceration” (unpublished working paper, University of Michigan, Ann Arbor, August 18, 2015); Peter Wagner and Wendy Sawyer, “Mass Incarceration: The Whole Pie 2018,” Prison Policy Initiative, March 14, 2018, prisonpolicy.org/reports/pie2018.html; Erwin Chemerinsky, “Cruel and Unusual: The Story of Leandro Andrade,” Drake Law Review 52 (2003).

Andrade was thirty-seven: Lockyer v. Andrade, 538 U.S. 63, 63–68 (2003); Chemerinsky, “Cruel and Unusual,” 1, 1–3.

The San Francisco–based U.S. Court of Appeals: Andrade v. Attorney General of California, 270 F.3d 743 (9th Cir. 2001); Lockyer, 538 U.S. at 77; Chemerinsky, “Cruel and Unusual,” 3–4; Andrade, 270 F.3d 743.

Souter, writing for the four liberal justices: Lockyer, 538 U.S. at 77; Chemerinsky, “Cruel and Unusual,” 3–4.

The Eighth Amendment did: State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003).

The United States has about 4.3 percent: Wendy Sawyer and Peter Wagner, “Mass Incarceration: The Whole Pie 2019,” Prison Policy Initiative, March 19, 2019, prisonpolicy.org/reports/pie2019.html; “World Prison Populations,” BBC News, news.bbc.co.uk/2/shared/spl/hi/uk/06/prisons/html/nn1page1.stm.

The incarceration rate has dipped: Office of the President, “Economic Perspectives on Incarceration”; Pfaff, Locked In, 4–5; Golash-Boza, “America’s Mass Incarceration Problem in 5 Charts”; John Gramlich, “America’s Incarceration Rate Is at a Two-Decade Low,” Pew Research Center Fact Tank, May 2, 2018, pewresearch.org/fact-tank/2018/05/02/americas-incarceration-rate-is-at-a-two-decade-low/.

Another leading criminology expert: Lauren-Brooke “L.B.” Eisen et al., “How Many Americans Are Unnecessarily Incarcerated?” (New York: Brennan Center for Justice, December 9, 2016); Adam Gopnik, “How We Misunderstand Mass Incarceration,” New Yorker, April 10, 2017; Adam Liptak, “U.S. Prison Population Dwarfs That of Other Nations,” New York Times, April 23, 2008.

“I think it’s a miscarriage”: Mallory Simon and Sara Sidner, “The Judge Who Says He’s Part of the Gravest Injustice in America,” CNN, June 3, 2017.

He noted, however: Richard A. Oppel Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” New York Times, September 25, 2011.

Many more, however, are: Patrick Liu et al., “The Economics of Bail and Pretrial Detention,” Brookings Institution, 2018, 3.

The cash bail system: Liu, “Economics of Bail and Pretrial Detention,” 3–6; Samuel Wiseman, “Pretrial Detention and the Right to Be Monitored,” Yale Law Journal 123 (2014): 1118.

The crime he was accused of: United States v. Salerno, 481 U.S. 739 (1987); Associated Press, “Supreme Court Won’t Consider Georgia City’s Cash Bail Policy,” U.S. News & World Report, April 1, 2019; Scott Shackford, “Supreme Court Turns Away Georgia Cash Bail Challenge,” Reason, April 2, 2019.

Celebrities have weighed in: Udi Ofer, “We Can’t End Mass Incarceration Without Ending Money Bail,” ACLU, December 11, 2017; Shawn Carter, “Jay Z: For Father’s Day, I’m Taking On the Exploitative Bail Industry,” Time, June 16, 2017; Brief for the American Bar Association as Amicus Curiae in Support of Petitioner, Walker v. Calhoun (Supreme Court, No. 18-814, 2019).

It also reported that: Kia Makarechi, “What the Data Really Says About Police and Racial Bias,” Vanity Fair, July 14, 2016; Sharon LaFraniere and Andrew Lehren, “The Disproportionate Risks of Driving While Black,” New York Times, October 24, 2015.

Whites searched without: Makarechi, “What the Data Really Says About Police and Racial Bias”; Report of the Blue Ribbon Panel of Transparency, Accountability, and Fairness in Law Enforcement (City of San Francisco, July 2016), SFBlueRibbonPanel.com.

It found that when: “Research Finds Racial Disparities in Prison Sentences,” Weekend Morning Edition, NPR, November 25, 2017; Christopher Ingraham, “Black Men Sentenced to More Time for Committing the Exact Same Crime as a White Person, Study Finds,” Washington Post, November 16, 2017; German Lopez, “Report: Black Men Get Longer Sentences for the Same Federal Crime as White Men,” Vox, November 17, 2017; Glenn R. Schmitt, Louis Reedt, and Kevin Blackwell, “Demographic Differences in Sentencing: An Update to the 2012 Booker Report” (Washington, D.C.: U.S. Sentencing Commission, November 14, 2017); Josh Salman, Emily Le Coz, and Elizabeth Johnson, “Florida’s Broken Sentencing System,” Sarasota Herald-Tribune, December 12, 2016.

McCleskey argued that: McCleskey v. Kemp, 481 U.S. 279 (1987).

He argued that Georgia’s death penalty: McCleskey, 481 U.S. 279; Chemerinsky, Case Against the Supreme Court, 43; Jeffries, Justice Lewis F. Powell, Jr., 438.

“If we accepted McCleskey’s claim”: McCleskey, 481 U.S. 279; Chemerinsky, Case Against the Supreme Court, 45.

If McCleskey “asked his lawyer”: McCleskey, 481 U.S. at 292–93, 322–23; Samuel Gross, “David Baldus and the Legacy of McCleskey v. Kemp,” Iowa Law Review 97 (2012): 1906, 1915–16.

The majority had made clear: McCleskey, 481 U.S. at 292–93, 322–23.

Anthony Amsterdam, a professor: Adam Liptak, “New Look at an Old Memo Casts More Doubt on Rehnquist,” New York Times, March 19, 2012.

The result would not only: Douglas Berman, “Introduction: McCleskey at 25: Reexamining the ‘Fear of Too Much Justice,’” Ohio State Journal of Criminal Law 10 (2012): 1.

The reason, she said: Transcript, Bill Moyers Journal, PBS, April 2, 2010, pbs.org/moyers/journal/04022010/transcript1.html; Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010), 114.

The Securities and Exchange Commission: Dirks v. Securities and Exchange Commission, 463 U.S. 646 (1983).

The majority then used this “innovation”: Dirks, 463 U.S. 646.

He challenged his conviction: Cheek v. United States, 498 U.S. 192 (1991); Nicholas A. Mirkay III, “The Supreme Court’s Decision in Cheek: Does It Encourage Willful Tax Evasion?,” Missouri Law Review 56, no. 4 (Fall 1991): 1119–22.

White said Cheek: Cheek, 498 U.S. at 192; Mirkay, “Supreme Court’s Decision in Cheek,” 1119–22.

The decision, Blackmun said: Bruce Grace, “Ignorance of the Law as an Excuse,” Columbia Law Review 86 (1986): 1392, 1395; Linda Greenhouse, “Supreme Court Ruling Supports Tax Protester,” New York Times, January 9, 2009.

The dissenters, Blackmun and Marshall: Cheek, 498 U.S. at 199; “Pilot Convicted of Income Tax Fraud,” Chicago Tribune, January 28, 1992.

The Court’s overall message: Peter Henning, “Narrowing the Definition of White Collar Crimes,” New York Times, March 3, 2015; Ratzlaf v. United States, 510 U.S. 135 (1994).

The Court had become: J. Kelly Strader, “The Judicial Politics of White Collar Crime,” Hastings Law Journal 50 (1999): 1199, 1201–2, 1246; Evans v. United States, 504 U.S. 255, 289 (1992).

Rehnquist voted for the defendant: Strader, “Judicial Politics of White Collar Crime,” 1199, 1229–30.

For years now, the only justices: Strader, “Judicial Politics of White Collar Crime,” 1250; Thomas Byrne Edsall, “Studies: Conservatives Are from Mars, Liberals Are from Venus,” Atlantic, February 6, 2016.

This statistic supports: Bernadette Rabuy and Daniel Kopf, “Prisons of Poverty,” Prison Policy Initiative, July 9, 2015, prisonpolicy.org/reports/income.html; Nathaniel Lewis, “Mass Incarceration: New Jim Crow, Class War, or Both?,” People’s Policy Project, January 30, 2018.

In a sample of prisoners: Economic Mobility Project and the Public Safety Performance Project of the Pew Charitable Trusts, “Collateral Costs: Incarceration’s Effect on Economic Mobility” (Washington, D.C.: Pew Charitable Trusts, 2010), 3–4; Rabuy and Kopf, “Prisons of Poverty”; Melissa Kearney and Benjamin Harris, “Ten Economic Facts About Crime and Incarceration in the United States,” Brookings Institution, May 1, 2014; Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Brookings Institution, March 14, 2018; Dylan Matthews, “Want to Stay Out of Prison? Choose Rich Parents,” Vox, March 14, 2018; Christopher Ingraham, “Where America’s Future Prisoners Are Born,” Washington, Post, March 14, 2018.

While 6 percent of white men: Hedwig Lee et al., “Racial Inequalities in Connectedness to Imprisoned Individuals in the United States,” Du Bois Review: Social Science Research on Race 12 (Fall 2015): 269–82; Wagner and Sawyer, “Mass Incarceration: The Whole Pie 2018”; John Gramlich, “The Gap Between the Number of Blacks and Whites in Prison Is Shrinking,” Pew Research Center, April 30, 2019; Rakoff, “Mass Incarceration.”

Much of that gap is due: Pew Charitable Trusts, “Collateral Costs,” 3–4; Rabuy and Kopf, “Prisons of Poverty”; Kearney and Harris, “Ten Economic Facts About Crime and Incarceration”; Looney and Turner, “Work and Opportunity Before and After Incarceration”; Matthews, “Want to Stay Out of Prison?”; Ingraham, “Where America’s Future Prisoners Are Born.”

When a father is imprisoned: Pew Charitable Trusts, “Collateral Costs,” 3–4.

The Pew Charitable Trusts study concluded: Pew Charitable Trusts, “Collateral Costs,” 20; Valerie Strauss, “Mass Incarceration of African Americans Affects the Racial Achievement Gap—Report,” Washington Post, March 15, 2017.

The detective arrested: Utah v. Strieff, 136 S. Ct. 2056 (2016); “Leading Case, Utah v. Strieff,” Harvard Law Review 130 (2016): 337.

When he appealed: Strieff, 136 S. Ct. 2056; “Leading Case, Utah v. Strieff,” Harvard Law Review.

Thomas said, however: Strieff, 136 S. Ct. 2056.

In many cases, warrants: Randall Guynes and Russell Wolff, “Un-served Arrest Warrants: An Exploratory Study,” National Institute of Justice/Department of Justice, April 22, 2004; “How NYC Is Tackling 1.4 Million Open Arrest Warrants for ‘Quality-of-Life’ Crimes,” PBS NewsHour, January 19, 2016; Utah v. Strieff, 136 S. Ct. 2056 (2016); “U.S. Finds Pattern of Biased Policing in Ferguson,” NBC News, March 3, 2015.

As a result, Kagan said: Strieff, 136 S. Ct. 2056.

As a result, anything the officer: Strieff, 136 S. Ct. 2056.

At jail, the officer can: Strieff, 136 S. Ct. 2056.

The system the Court was establishing: Strieff, 136 S. Ct. 2056.

As the sociologists explain: David Jacobs, “Inequality and Police Strength: Conflict Theory and Coercive Control in Metropolitan Areas,” American Sociological Review 44 (1979): 913, 914.

“I doubt that the proud men”: Strieff, 136 S. Ct. 2056; King, 569 U.S. 435 (2013).

Conclusion

Majority Leader Mitch McConnell: Alan Fram, Lisa Mascaro, and Matthew Daly, “Kavanaugh Sworn to High Court After Confirmation,” Associated Press, October 6, 2018; Clare Foran, “Brett Kavanaugh Sworn In as Supreme Court Justice,” CNN, October 6, 2018.

Many Court watchers believed: Jess Braven, “Conservative-Dominated Supreme Court Fulfills Nixon-Era Dream,” Wall Street Journal, October 9, 2018.

Now that O’Connor was gone: Louise Melling, “Will the Supreme Court Overturn Roe v. Wade After All?,” New York Times, December 11, 2018.

In a big case: Erwin Chemerinsky, The Case Against the Supreme Court (New York: Penguin, 2014), 47–48; Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007); Fisher v. University of Texas, 36 S. Ct. 2198 (2016); Adam Harris, “The Era of Affirmative Action May Not Last Much Longer,” Atlantic, July 3, 2018.

It was possible that: Dylan Matthews, “America Under Brett Kavanaugh,” Vox, October 5, 2018.

Millions of Americans: Melling, “Will the Supreme Court Overturn”; Harris, “Era of Affirmative Action May Not Last.”

In the “switch in time”: A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 (1936).

It included a presentation: Peter Montgomery, “‘Rome Wasn’t Burned in a Day’: Right Wing Plans for SCOTUS to Dismantle the Safety Net,” Right Wing Watch, People for the American Way, July 24, 2018.

“Don’t be cowed”: Andrew C. McCarthy, “Limiting the General Welfare Clause,” National Review, June 30, 2012; Montgomery, “‘Rome Wasn’t Burned in a Day.’”

In 1995 and 2000: United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).

In his opinion: National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).

When Barack Obama: James Stewart, “In Obama’s Victory, a Loss for Congress,” New York Times, June 29, 2012; Brad Plumer, “Supreme Court Puts New Limits on Commerce Clause. But Will It Matter?,” Washington Post, June 28, 2012; Tom Scocca, “Obama Wins the Battle, Roberts Wins the War,” Slate, June 28, 2012.

At the oral argument: Eliot Mincberg, “Edit Memo: Inside Trump’s Plan to Pack Our Courts and Repeal the New Deal,” People for the American Way, 2018; Amy Howe, “Argument Analysis: An Epic Day for Employers in Arbitration Case,” SCOTUSblog, October 2, 2017.

A survey by an employment website: Kevin Kelleher, “Gilded Age 2.0: U.S. Income Inequality Increases to Pre–Great Depression Levels,” Fortune, February 13, 2019; “The Shrinking Middle Class,” Fortune, December 20, 2018; Emmie Martin, “The Government Shutdown Spotlights a Bigger Issue: 78 Percent of U.S. Workers Live Paycheck to Paycheck,” CNBC, January 9, 2019.

Dalio called on the nation’s leaders: Erik Schatzker, “Ray Dalio Sounds a New Alarm on Capitalism’s Flaws, Warns of Revolution,” Bloomberg, April 4, 2019; Eduardo Porter, “Income Inequality and the Ills Behind It,” New York Times, July 29, 2014; Catherine Clifford, “Warren Buffett on Income Inequality: ‘A Family’ Takes Care of Its Own and the US Should Too,” CNBC, February 26, 2019.